Time to vote or photo op?

Battles rage over selfies

If you are hoping to document your vote by taking a photo of your ballot, you may be headed for a legal gray area that in some states has grown only murkier in the days leading up to Election Day.

Because the laws in several states are muddled, under review or confusing, unsuspecting voters may run afoul of the rules.

Last week, an extensive review by The Associated Press of the array of ballot selfie laws in all 50 states found that 18 states prohibit sharing photos of ballots. Another, California, joined the list on Wednesday, when a federal court judge denied a request to allow them.

With only a week until the general election, on Nov. 8, battles are being waged over the legality of so-called ballot selfies in at least three states, including Colorado, Michigan and New York.

The AP found that voting laws were unclear in a dozen states. California was a good example of how confusing the rules could seem to voters: A 125-year-old law barring people from sharing their ballots has been repealed, but the legislative action allowing ballot selfies will not go into effect until weeks after the election.

That created a sort of legal limbo for voters: Can they violate a ban that is not being enforced in the first place? Wednesday’s ruling offered some clarity, but residents of other states may still be confused.

In some cases, lawmakers find, antiquated laws collide with the modern tendency to document the goings-on of daily life, which, every once in a while, involves casting a vote.

In Colorado, a federal judge will soon hear challenges to a 125-year-old law that bars people from publishing their ballots, similar to the one in California. In Colorado and New York, publishing a ballot remains a misdemeanor crime.

According to The Denver Post, the case for keeping the law protects against possible cases of voter coercion.

“We believe the current law protects the integrity of the election and protects voters from intimidation or inducement,” Suzanne Staiert, Colorado’s deputy secretary of state, said in a statement to the newspaper. “In fact, given Colorado’s unique election system and rise of social networking, the prohibition may be more important in Colorado than in other states and may be more timely today than ever.”

This argument was used unsuccessfully by officials in New Hampshire, which overturned a ban on ballot selfies in September. The media company Snapchat was involved in that case and filed an amicus brief that argued ballot selfies were “the latest way that voters, especially young voters, engage with the political process.”

Activists also found the voter-coercion argument moot: “There isn’t much evidence, if any at all, that this kind of activity is actually occurring,” Justin Silverman, the executive director of the New England First Amendment Coalition, told The New York Times in April.

Because of the muddled laws in several states, some voters are still at risk of breaking the rules. In one high-profile case, the musician Justin Timberlake published a ballot selfie after voting in Tennessee, apparently unaware that doing so constitutes a misdemeanor crime there, punishable by fines and jail time.

Timberlake, however, is not being investigated for his legal slip-up, according to USA Today.

In other states, lawmakers seem willing to keep the debate over ballot selfies running down to the wire: In Michigan, an appeals court reversed a lower court’s ruling to allow ballot selfies, leaving voters with just over a week to figure out whether the act was legal in their state.

And in New York, three voters filed a lawsuit in October against the ban in a district court. According to The AP, the judge, P. Kevin Castel, asked why the plaintiffs waited until just before the election to challenge the law.

“I don’t blame him,” said Leo Glickman, the lawyer who filed the lawsuit on behalf of the voters. “We are asking a lot of the courts to do something in a short period of time.”

Castel is expected to rule on the ban by the end of the week.

© 2016 New York Times News Service