SD Rostra

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

ballot 2016 2

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:


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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