California ACLUs seek to allow ballot selfies

By John Myers | Dec 2, 2016

SAN FRANCISCO -- California residents will be able to share their ballot selfies after a new law takes effect Jan. 1, 2017.

On Aug. 22, the California State Assembly passed Assembly Bill 1494, which allows voters to voluntarily disclose how they chose to vote, including sharing their votes on social media. Michael Risher, senior staff attorney for the American Civil Liberties Union (ACLU) of Northern California, told the Northern California Record that overturning the ban represents an important victory for the First Amendment. 

“In the age of social media, it has become clear that taking a picture of a ballot is a way that Americans talk about their political beliefs,” he told the Northern California Record. “This is not the first time the First Amendment has had to be adapted to respond to new trends and technologies.”

Assembly Bill 1494 overturns a previous ban that forbid voters from sharing a marked ballot with anyone other than themselves, which was still in effect during the November 2016 election.

Alex Padilla, California Secretary of State, issued a statement before the election, saying he would continue to enforce the ban through the election and up until the new law took effect.

“As secretary of state, I have made it my mission to encourage participation in our elections and I appreciate Californians’ desire to show their civic pride in casting a ballot. However, today’s ruling means that 'ballot selfies' are not authorized for the Nov. 8, 2016, general election,” Padilla said in a press release issued by his office. “We need to embrace the use of technology as a way to encourage civic participation. That's why I supported a new law that is paving the way for 'ballot selfies' to be permitted under state law. This new law will go into effect on Jan. 1, 2017.

In response to Padilla's statement, the ACLU of Northern California, the ACLU Foundation of Southern California and the ACLU of San Diego and Imperial Counties filed suit seeking to overturn the ban in time for the election.

The ACLU's lawsuit argued that photographing and sharing one’s ballot is political speech protected by the First Amendment and any attempt to enforce the current ban is unconstitutional. ACLU attorneys asked for a temporary restraining order to prohibit the state from enforcing the ban for the November election. 

“Most courts have looked at selfies as a part of social media and decided that they are protected speech the same way movies and photographs are protected,” Risher said. “We consider them to be important because images are such a powerful way of communicating in social media. It may seem trite to say that an image is worth a thousand words but it is still true.”

Padilla claimed to be unimpressed with the ACLU's argument, he indicated in a memo, and responded by saying that the secretary of state's office is required by state law to enforce the current ban on ballot selfies unless a court finds the law unconstitutional.

A judge denied the ACLU's request, saying that changing the law would require the state to retrain the hundreds of staff that work at more than 14,000 polling places across California. The presiding judge stated that he could not understand how the ban would disenfranchise voters and that the state legislature could have included the 2016 presidential election when it repealed the ban but chose not to, which demonstrates legislative intent.

“The judge was worried about the potential disruption at polling places, even though California does not have any statutes regulating this kind of behavior,” Risher said. “There are rules against taking a picture for the purpose of intimidating voters but not about your own ballot.” 

Right now, 18 states ban sharing photos of voter ballots, while six other states prohibit taking photos in polling places but allow for photos of mail-in ballots. Judges in Indiana and New Hampshire have ruled against bans on selfies in those states and a lawsuit challenging such a ban in New York is currently pending.

Risher warned that this ruling could represent a trend for future court decisions.

“I think there is a danger that the courts are not keeping up with the changes in technology and our culture, and that too many judges do not understand the real power of social media,” he said. “But maybe after the results of the most recent election, the courts will be able to finally see that social media is as powerful and important as any other form of discourse and that includes the ACLU. We need to be doing a better job of being on top of these kinds of issues.”  

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American Civil Liberties Union of Northern California California Secretary of State California State Legislature State of California

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