EPISODE 191 – THE “BALLOT SELFIE” CRAZE: IS IT LEGAL? IS IT NOT?

Election Day is around the corner folks – but before you take that selfie and paste, post, tweet, snap or whatever the kids are doing nowadays … beware … you could land yourself with a misdemeanor and a fine!

Jaclyn Belczyk, Research Director for JURIST, the award winning web-based legal news and real-time legal research service housed at the University of Pittsburgh School of Law, tells us why this “ballot selfie” craze is all a buzz this election season and which states are just saying “no”, to sharing your vote.

 

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Tracy: Hi, this is Tracy Merda with Speakeasy Authority Marketing and today, we have a very exciting guest, Jaclyn Belczyk of JURIST. Jaclyn joins us as the research director of JURIST which is of course an award winning web based legal news and online research. Jaclyn, thanks for joining me today.

Jaclyn: Sure, happy to do that.

Tracy: Well, Jaclyn, you just recently wrote a really interesting article on the selfie ballot which seems to be the craze this election season. Tell me a little bit about that.

Jaclyn: Yes. We’ve actually written quite a number of articles on this topic. Just over the past couple of weeks seems to be an issue that’s popping up in a lot of different states. Basically there are laws on the books in many different states that prohibit the taking of so-called ballot selfies, people snapping photographs at the polling place of their ballots and sharing those or posting those to social media, so these have been challenged in a number of states, there have been various lawsuits and court rulings and basically it’s kind of resulted in the state of confusion where depending on where you are, this is something that might or might not be allowed.

Tracy: Well, I mean cameras and cell phone use is then banned from polling places for — as long as I can remember, so why do you think there is so much hype and attention this year.

Jaclyn: Yes. So, I think that’s probably a combination of things. In most cases, these aren’t brand new laws. There have been laws like you said banning cameras from polling areas in many different states or laws preventing people from sharing their ballots, so these aren’t new laws but I think their application in this context to the Smartphone, social media and everything is still fairly new. It seems like we all have been carrying our Smartphones around forever but it’s still a pretty recent phenomenon that everybody has a Smartphone and everybody is posting things that they do to social media, so fairly new for this election in particular. And I also feel like the tone of this election is a little bit different than what we have seen before. It seems like here on JURIST, we have seen a lot more litigation over all kinds of voting right issues in the months and weeks leading up to the election more than I can recall certainly in 2012 or 2008. So this is just one of many different voting type of issues that I have seen court rulings on in recent weeks.

Tracy: And why do you think the ballot selfie voters are so eager to get out there and share who they are voting for? I mean if anything, I guess my age was more so like I voted sticker, that’s how we kind of announced it.

Jaclyn: Yes. Again, I think it’s something about this election, this particular election, these candidates have really touched the nerve with a lot of people. People have really strong opinions about which candidates they are supporting, they have really strong reasons for their support and they have been sharing that on social media for months now. So it seems I think maybe a natural extension for a lot of people to want to post the combination of that on their social media profiles, it’s just one more way for them to show their friends, their relatives who they are supporting and where they stand. And I am sure they are also hoping that sharing a ballot selfie is going to encourage other members of their social network to get out and vote hopefully for their candidate and maybe even share their support on their social media networks.

Tracy: So the main theories of the ballot selfie are really saying things like the laws are there to protect voter rights and privacy. What is the ECLU of Northern California and other proponents of the ballot selfie saying?

Jaclyn: Well, basically they are making first amendments pre-speech argument. So they are arguing that any kind of laws that restrict people from sharing images of their ballots, sharing on information, posting it to social media, taking pictures that those types of laws are an infringement on their right to free speech, freedom of expression. And I think that’s a fairly strong argument actually. Nevertheless, courts have been going in different directions on that. So some courts, like the Northern District of California, Southern District of New York that we saw recently have rejected these challenges basically on the premise that making a change at this stage in the election cycle is just going to cause a lot of confusion. As a judge in New York wrote just recently “The public’s interest in orderly elections outweighs the plaintiff’s interest in taking and posting ballot selfies”. So the courts haven’t necessarily come down ruling on the merits saying, “There isn’t a first amendment violation but courts have been a little bit hesitant to enjoying the laws at this point for fear of creating a lot of confusion about what is or isn’t allowed”. And then there are other courts that have gone the other way and upheld the challenges and said, “The ballot selfies are fine”. So it will be interesting to see where that goes from here because I do think that first amendment argument is a pretty strong argument.

Tracy: It is. And certainly in the states that it is illegal, do you really think that it’s realistic that police are going to go on and prosecute people for taking pictures with their ballots?

Jaclyn: Well, that’s hard to say. I have a hard time personally imagining that this is going to be a top priority for prosecutors. That being said, I think it will be a pretty easy case for them to make. Their evidence is going to be right there on your social media account. And then accusations of voter fraud have been flying around recently and I am sure this is going to be a contentious election, so who knows what types of claims might get made in the days and weeks following the election. My best guess is that you’d be unlikely to be prosecuted if you are posting a ballot selfie in the state where that’s prohibited but I would account on that. So I think you’d have a pretty strong first amendment argument to make in your defense if they did come after you though, so I bet you’d be able to find some lawyers to take on your case.

Tracy: Who knows for this year, right. Anything is possible.

Jaclyn: Right. And that’s what I am saying, I am like anything could come up.

Tracy: So Jaclyn, what do you think to come the next big election? How do you perceive ballot selfies, social media or other technology with this, the youngest generation, if you will or maybe even our generation, how do you see those trends coming into play and maybe kind of being brought even further to the light?

Jaclyn: Yes. I mean I don’t think that this is something that’s going to just go away. I think we’ll see a trend of states moving to make changes to their laws. For example, California, not going to be allowing ballot selfies for Tuesday’s election but there’s already a law that’s set to take affect on January 1^st that’s going to allow them in upcoming elections. So I think we are going to start to see more of that. Social Medias have such a big role to play and how people are talking about the election, how people are talking about the issues that are important to them and I don’t see that as something that’s going to change. Courts, lawmakers are always a few beats behind on new technology though, so once the laws catch up on ballot selfies, who knows what the next technology is going to be that the courts or lawmakers haven’t necessarily anticipated.

Tracy: Well, it will be interesting day regardless of what happens with the selfie ballots or our lovely candidates.

Jaclyn: Definitely.

Tracy: Well, I want to thank you, Jaclyn, really for joining us today. This is a great quick interview. I just was eager to get your insight into the process and we just look forward to see what the outcome brings tomorrow.

Jaclyn: Okay, well thanks so much for having me.

 

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