Monday, November 3, 2014

Election Ballot "Selfies"

In the late 1800s, New Hampshire enacted legislation prohibiting voters from showing their completed ballots to anyone for the purpose of proving how they voted. The statute sought to address the apparently widespread problem of politicians purchasing votes for their candidates. Effective September 1, 2014, the New Hampshire legislature updated the law to specifically prohibit persons from “taking a digital image or photograph of his or her marked ballot and distributing or showing the image via social media or by any other means.” The American Civil Liberties Union has filed suit claiming that the law violates the First Amendment.

Illinois does not have a similar statute. Section 29-9 of the Illinois Election Code makes it a Class 4 felony for a person to “knowingly mark[] his ballot or cast[] his vote on a voting machine or voting device so that it can be observed by another person.” Section 29-9 also prohibits anyone from knowingly observing a voter marking a ballot. And while a Peoria Journal Star article  indicates that it might be a violation of this statute to take a photograph of a completed ballot and then post it on social media, that interpretation seems strained.  The statute is clearly intended to prevent a person from standing in such proximity to a voter in the polling place so as to allow observation of the actual act of voting. The law does not mention displaying a completed ballot after the fact. Even a New York law that specifically prohibits showing a marked ballot to another has reportedly been interpreted by lawyers of the New York State Board of Elections as not prohibiting the posting of a ballot photograph on Facebook.

Whether legal or illegal under the Election Code, people might consider the advisability of displaying their voting record on the internet in perpetuity.

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