Congratulations! You’ve spent the last year navigating the tumultuous 2016 campaign season, and you’ve managed to survive long enough to cast your ballot in early voting. It’s a big moment—historic, even—and one that you might want to preserve for years to come. If your instinct is to immortalize the scene by snapping a pic of your democracy-in-action grin alongside that filled-out ballot, we’ve got some bad news: you might be breaking the law.
According to a recent review by the Associated Press, 17 US states currently have laws that prohibit voters from sharing a picture of their ballots, with punishments ranging from fines to jail time. Six other states allow voters to take a photo of their mail-in ballot, but prohibit photos in polling centers.
These laws, while seemingly arcane, are actually a sort of last-ditch effort to prevent voter intimidation or vote buying. The idea is if you can’t take a photo of your ballot, no one can verify whether or not you voted for the candidate they paid or coerced you to vote for. In other words, these laws exist to protect voters. But some opponents see them as infringements on free speech. The ACLU of California is suing California Secretary of State Alex Padilla to prevent the state from enforcing a law that prohibits voter selfies.
“This is an incredibly contentious election. Thousands of our members want to engage in this core political speech, and not just show people how they are voting but try to encourage others to vote the same way,” Michael Risher, a senior staff attorney for the ACLU of Northern California, said in a statement. The lawsuit comes after Padilla sent a reminder to county election officials that a law signed by the governor allowing voters to share photos of their marked ballots doesn’t go into effect until January 1. Voter selfies are still technically illegal for the November 8 election, though the law has never been enforced in its 125-year history.
In April, Snapchat also joined the First Amendment fight to protect ballot-selfies by filing an amicus brief in New Hampshire after proponents of the law appealed a federal court’s ruling that the ban was unconstitutional. Snapchat argued that selfies are “how voters—particularly young voters—engage with the political process,” and labeled it “a new method of expression.” A federal appeals court upheld that the ban was unconstitutional, allowing ballot selfies there once and for all.
Still, for all the First Amendment issues the ballot selfie has raised, the question of just how committed police and election officials are to enforcing these laws remains somewhat unsettled. Just a couple weeks ago everyone’s favorite N’Sync member, Justin Timberlake, made headlines after he took a photo of his marked ballot in his home state of Tennessee, where voter selfies are illegal. While police did at first say the incident was “under review,” the Shelby County District Attorney has since said that no one on its staff will devote their “limited resources” to investigating the case.
Other states with these bans likely wouldn’t invest those resources either, especially since many were written before cell phones were even invented. In such states, like Illinois, policing ballot selfies likely wasn’t part of its original intent.
“This is not the ballot-selfie law,” Ken Menzel, general counsel at the Illinois Board of Elections told WIRED. “Some millennial who throws a ballot picture onto their Facebook or Instagram, I think it’s perhaps unlikely that a state’s attorney would choose to invest prosecutorial resources to go after that person.”
That’s good news, since violating the law in Illinois is considered a felony punishable by up to 3 years in prison—the harshest in the country.
Massachusetts Secretary of State William Galvin echoed those sentiments back in 2012. “There is a statute that says you shouldn’t do it, and you shouldn’t,” he said of sharing ballot selfies on social media. “We go to great lengths to protect the privacy of voters. However, we have better things to do than pursue those types of cases.”
Of course, that’s not to say you should openly defy your state’s law against sharing ballot selfies. You’d still be breaking the law—not to mention, polling centers advise against taking photos because it may disrupt and slow down the voting process—and we won’t condone either of those. But the reason these laws exist aren’t to deprive you of your internet points or stifle free speech. They’re just the side-effects of a 20th-century law playing out in a 21st-century world. And for that reason, you probably won’t face any criminal action for your rad ballot selfie.
Still, you should probably know if your state is among those where ballot selfies are illegal. See the list below:
Alabama: No photos of ballots are allowed, and the state advises against photos in polling centers.
Alaska: Voters are not allowed to show their marked ballot.
Colorado: Showing your ballot is considered a misdemeanor.
Florida: No photos are permitted in polling room or early voting areas.
Georgia: No photos, video recording, or cell phones allowed in polling space.
Illinois: Showing one’s marked ballot is considered a Class 4 felony punishable between 1-3 years in jail.
Kansas: Showing photos of marked ballots are not allowed.
Massachusetts: Showing photos of marked ballots are not allowed, though an appellate court that ruled New Hampshire’s ballot-selfie ban unconstitutional may apply to Massachusetts.
Mississippi: Showing a marked ballot is not allowed.
Nevada: Photos inside polling places and of mail-in ballots are prohibited.
New Jersey: Showing marked ballots to others is prohibited.
New Mexico: Showing marked ballot “to any person in such a way to reveal its contents” is prohibited.
New York: Showing marked ballot “to any person so as to reveal its contents” is prohibited.
North Carolina: Photographing a ballot at all is prohibited.
South Carolina: Allowing someone to see a marked ballot is considered “unlawful.”
South Dakota: Showing a marked ballot is not allowed; fears of voter intimidation and vote buying.
Wisconsin: Showing a marked ballot in any way to someone else is illegal.
Now get out there and vote. Responsibly.
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