Today, Judge Castel denied an attempt to enjoin the enforcement of New York’s Election Law § 17-130, or the so-called “ballot selfie” ban. Judge Castel found that the state’s interest in protecting against voter fraud and intimidation by preventing voters from revealing the content of their ballots (even if through Instagram) was a reasonable First Amendment restriction:
[E]arly American elections were plagued by voter intimidation and election fraud. In order to combat rampant vote buying, intimidation, and coercion, New York adopted a series of reforms in the late 1800s designed to protect the integrity of elections, including a prohibition against showing a marked ballot to another person so as to reveal the contents of that ballot. These reforms, many of which focused on preserving the secrecy of the ballot, aimed to reduce voter bribery by removing the ability to determine whether the bribery or intimidation had been successful. The success of such reforms ultimately led to their adoption across all 50 states . . . .
[T]he ubiquity and ease of smartphone technology plausibly increases the risk of one form of voter intimidation. Without the statute, employers, unions, and religious groups could encourage their members to upload images of their marked ballots to a single location to prove their commitment to the designated candidate. Those who declined to post a selfie could be swiftly outed and subjected to retaliation.
Judge Castel also found that the potential to disrupt the election by issuing an order just a week beforehand weighed against granting the injunction:
This action was commenced 13 days before the presidential election, even though the statute has been on the books longer than anyone has been alive. Selfies and smartphone cameras have been prevalent since 2007. A last-minute, judicially-imposed change in the protocol at 5,300 polling places would be a recipe for delays and a disorderly election, as well-intentioned voters either took the perfectly posed selfie or struggled with their rarely-used smartphone camera. This would not be in the public interest, a hurdle that all preliminary injunctions must cross.