Is it illegal to take a ballot selfie? The answer may surprise you.

Daniel Watts Daniel Watts, Undesignated Leave a Comment

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Is it illegal to take a picture of your own ballot? As a free speech lawyer, I get asked this question every election day.

In short, no. It’s not illegal. 

Look closely at the articles that say otherwise. They’re either completely devoid of supporting information (like this CW6 piece), or they concede that the laws they’re complaining about have never been enforced against any voter – ever. Take, for example, this L.A. Times article, which admits that courts strike down these laws whenever they’re enforced.

Those few who bother citing their sources usually refer to the portion of California’s Election Code which says that “after his or her ballot is marked, a voter shall not show it to any person in such a way as to reveal its contents.” (Cal. Election Code 14276). A few problems with this:

  • I’m not showing anyone my ballot. I’m showing you a purported photo of my ballot.
  • This law is part of a section of the elections code that outlines procedures at polling places without specifying any punishments. It includes other unenforceable clauses like a requirement that voters use only the officially approved felt pen to mark their ballots, a ban on voters making too many scribbles on their ballots, and a mandate that the voter “retire forthwith alone to one of the booths” after receiving his ballot. (If you’ve ever taken a child into the polling booths with you, congratulations: You violated section 14281 of the Elections Code).
  • Even if this law did ban taking pictures of your ballot and posting them online, it would be unenforceable for violating the First Amendment. No one could ever be convicted because the law itself violates the Constitution. You cannot be convicted for violating an unconstitutional law.
  • No one in the history of California has been prosecuted for taking a photo of his own ballot and posting it online. The chances of a prosecutor filing charges against you for posting a ballot selfie are nill.
  • Every court to consider similar laws in other states have struck them down on free speech grounds. California’s Constitution has broader free speech protections than any other state, so there’s no way it would survive a constitutional challenge.

 

There is, of course, Cal. Elec. Code § 18541(a)(3), which says “No person shall, with the intent of dissuading another
person from voting, within 100 feet of a polling place, …Photograph, video record, or otherwise record a voter entering
or exiting a polling place.” This is a serious law. It carries with it the possibility of a 12 month prison sentence. And it clearly bans photographing ballots – or does it? Let’s break down the elements of this offense:

Element 1: “with the intent of dissuading another person from voting”

Element 2: “within 100 feet of a polling place”

Element 3: “Photograph…a voter entering or exiting a polling place.”

Now let’s consider the act of taking a ballot selfie. When I take my selfie, am I intending to dissuade another person from voting? Probably not, but let’s go ahead and assume I am. Perhaps I’m trying to dissuade you from voting for Donald Trump, the Sentient Wig Possessed By An Ancient Evil. Element 1? Satisfied.

As for Element #2, anyone standing in a poll is within 100 feet of a polling place. But someone photographing their mail-in ballot from the comfort of their toilet seat is not within 100 feet of a polling place. So it depends where you take the photo. Let’s assume I took the selfie in the polling booth. Element 2? Satisfied.

Element 3, though, is not met by anyone’s ballot selfie, unless you’re using a super wide-angle lens to catch a glimpse of everyone else in the polling place. Element 3 criminalizes photographing voters, not ballots. Does my ballot selfie include a photograph of anyone exiting a polling place? Obviously not.

TL;DR: Photos of your own ballot are fine. Photos of other voters are not so fine.

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