If you take the time to vote in this year’s presidential election – but your ballot is not documented on social media – did you really vote at all?

Many prolific social media users are determined to take ballot box selfies to chronicle their historic votes, but a patchwork of inconsistent state regulations has caused confusion as to whether such snaps violate the law.

However, a series of federal court challenges in recent weeks have spurned some states to change their restrictions on ballot selfies less than a week before Election Day. In these cases, plaintiffs have contended that the enforcement of ballot box selfie bans is unconstitutional and violates their free speech rights. In a landmark case on the issue, the U.S. Court of Appeals for the First Circuit in September affirmed a lower court’s ruling that a New Hampshire statute barring ballot selfies served as a content-based restriction of speech in violation of the First Amendment. The First Circuit held that the statute’s purpose of preventing “new technology from facilitating future vote buying and voter coercion” cannot justify the restrictions it imposed on speech. See Rideout, et al. v. Gardner, Case No. 15-2021 (1st Cir. Sept. 28, 2016) (link to opinion here).

Even millennial icon Justin Timberlake found himself subject to potential selfie sanctions after the pop star snapped a photo of himself inside a voting booth in Tennessee to promote early voting and then posted the photo along with a message on Instagram. A new state law in Tennessee prohibits voters in the state “from using the device for telephone conversations, recording, or taking photographs or videos while inside the polling place” and penalties can include 30 days in jail and a $50 jail. Fortunately, there were no tears for the “Cry Me a River” crooner – a Tennessee newspaper reported last week that the office responsible for investigating Timberlake’s actions would not be prosecuting the matter.

In order to provide Drye Wit readers with some clarity prior to Election Day, this post will examine the current laws governing whether voters are permitted to take pictures of themselves voting along with their actual ballots. The post also will analyze the growing number of federal court challenges to such selfie bans.

# BY THE NUMBERS

Can you snap a selfie inside a voting booth or not? The answer depends on where you live.

According to recent data published by the Associated Press (link to article here), ballot selfies are permitted in 19 states and the District of Columbia. In Rhode Island, for example, the Board of Elections adopted new rules in time for the election allowing voters to take selfies inside polling locations as long as the photos don’t capture another voter’s ballot (similarly, in Utah, it is a misdemeanor to photograph someone else’s ballot but legal for people to snap photos of themselves with their individual ballots). In Virginia, social media users have free reign, as a formal opinion issued by the state attorney general last month stated that ballot selfies are legal and that voters are not barred from taking photos of themselves, fellow voters, or their ballots. In some of these 19 states, there are no rules blocking photos in polling places, but clerks and election officials are given wide discretion to implement general policies to “maintain order.”

In eighteen states, ballot selfies are expressly illegal now, although future legislative measures are pending in states like New Jersey (the pending law would allow voters to take photos of their own ballots while in a voting booth). While officials in some of these states (Alaska and Massachusetts) have remarked that they will refrain from practically enforcing such bans, Illinois has perhaps the strictest anti-selfie policy on the books. According to Illinois law, “knowingly” marking your ballot so another person can see it is a class 4 felony, which is subject to a prison sentence of up to three years.

In the remaining states, guidance is mixed. In Maryland, while electronic devices are banned inside polling places, photos of mailed ballots are permissible. In Oklahoma, a state law suggests voting booth photos are illegal, but the law carries no penalties for violations. In California, Gov. Jerry Brown signed a bill repealing the law barring voters from showing people their completed ballots, but the law doesn’t take effect until January 1, 2017. In some states, such as Arkansas, a distinction is made between taking photos while in a polling location (which is permissible) and sharing photos of the ballot (guidance is unclear).

# THE FIRST CIRCUIT’S OPINION IN RIDEOUT

In the First Circuit’s decision, a three-judge panel found that banning voters from sharing photographs of their election ballots failed the First Amendment’s intermediate scrutiny test. The First Circuit first agreed with the district court’s reasoning that the New Hampshire statute under review is “plainly a content-based restriction on speech because it requires regulators to examine the content of the speech to determine whether it includes impermissible subject matter.” The district court applied strict scrutiny, which requires the government to prove that the restriction in question furthers a compelling interest and is narrowly tailored to achieve that interest. Although the New Hampshire Secretary of State claimed that the statute was intended to prevent vote buying and voter coercion, the district court reasoned that those interests were only “compelling in the abstract” as no record provided any support for the view that New Hampshire currently suffered from vote buying or voter coercion based on images of completed ballots being posted to social media.

The First Circuit went one step further than the district court in finding that the statute would be considered facially unconstitutional even when applying an intermediate scrutiny standard. The court found that there is “a substantial mismatch between New Hampshire’s objectives and the ballot-selfie prohibition . . .” and also determined that intermediate scrutiny is not satisfied by the assertion of “abstract” interests. According to the court, New Hampshire was not able to identify a single complaint of vote buying or intimidation relating to a voter’s publishing a photograph of a marked ballot on social media. Furthermore, the court found that the statute was not narrowly tailored in that the prohibition on ballot selfies “curtails the speech rights of all voters, not just those motivated to cast a particular vote for illegal reasons.” The First Circuit also recognized that core political speech is an area highly protected by the First Amendment and that a ban on ballot selfies thus would suppress a “large swath of political speech” and limit a voter’s ability to express support for a candidate.

Notably, social media giant Snapchat filed an amicus petition in this case, where it argued that “younger voters participate in the political process and make their voices heard” through the use of ballot selfies (link to Snapchat amicus filing here). In sum, Snapchat claimed that “[a] ballot selfie – like a campaign button – is a way to express support for or against a cause or candidate. And because it is tangible proof of how a voter has voted, a ballot selfie is a uniquely powerful form of political expression. It proves that the voter’s stated political convictions are not just idle talk.”

# OTHER CHANGES PRIOR TO ELECTION DAY?

Buoyed by the First Circuit’s ruling, individuals and organizations such as the ACLU have filed a handful of other requests in federal courts during the last few weeks with the goal of allowing voters to take and share ballot selfies when they go to the polls on November 8.

In California, the ACLU filed a lawsuit on October 31 in federal court in San Francisco, seeking an injunction blocking the state from enforcing its selfie ban (which is only in effect until law AB 1494 takes effect on January 1, 2017). On November 2, Judge William Alsup of the U.S. District Court of the Northern District of California denied the request, reasoning that the lawsuit was filed too close to the election and any late change would risk confusing voters.

In New York, a lawsuit filed on October 27 contended that a state election law forbidding voters from sharing photographs of their completed ballots through social media violates their freedom of speech rights. In New York, ballot selfies are a misdemeanor subject to fines of up to $1,000 and one year in prison. U.S. District Judge P. Kevin Castel held oral argument on November 1, with plaintiffs requesting that the court find the statute to be unconstitutional. The judge reserved decision and said he would rule on the request by the end of the week.

A federal court challenge is also underway in Colorado. In Michigan, U.S. District Court Judge Janet Neff ruled on October 24 that the state’s prohibition of ballot selfies violated the First Amendment, but the Secretary of State’s Office filed a motion intending to appeal the ruling to the U.S. Court of Appeals for the Sixth Circuit and asked for an injunction against implementing the decision until after the election.

# SAY CHEESE?

In sum, before snapping a smiling ballot box photo complete with #makeamericagreatagain or #imwithher, we advise that you check with your state election authority to determine whether any statutes currently on the books would forbid such pictures (and whether your state plans to actively enforce such statutes if they do exist).

In light of the First Circuit’s recent precedent, we expect to see more litigation that challenges current restrictions on the use of social media to chronicle Election Day activity – but while such court rulings may block certain prohibitions in time for the 2020 election, it is doubtful that widespread changes will be in place in time for this election cycle.