Michigan’s ban on ‘ballot selfies’ challenged in federal lawsuit

Posted at 5:56 PM, Oct 03, 2016
and last updated 2016-10-03 17:56:54-04

GRAND RAPIDS, Mich. — A recently filed federal lawsuit is challenging Michigan's ban on so-called "ballot selfies" — the use of cameras in voting booths and polling places — arguing it's a violation of free speech.

Attorney Steve Klein with the Pillar of Law Institute filed the suit on behalf of Portage resident and close friend Joel Crookston in U.S. District Court in Grand Rapids on Sept. 9. The suit challenges the restrictions on camera use in voting booths and polling places.

According to state statute, taking pictures or videos in a polling place is considered an "election day offense," with the only exception being for credential news media in limited, pre-determined situations. State law goes even further to stipulate that any ballot shown to someone else other than an individual tasked with legally assisting the voter cast that ballot "shall not be deposited in the ballot box," but instead marked “rejected for exposure," meaning the vote won't be counted.

The misdemeanor crime also carries a potential $500 fine and up to 90 days in jail.

The purpose of the law is to prevent unnecessary ballot exposure potentially leading to vote buying or voter coercion, according to Fred Woodhams, spokesperson for the state bureau of elections.

"The law enforcing the secret ballot has been in effect since 1891," Woodhmans said, claiming coercion and so-called vote buying were problems prior to the creation of laws.

"Ballot secrecy protects voters."

Joel Crookston's 2012 'ballot selfie' post on Facebook (Exhibit B in federal lawsuit).

Crookston said he was unaware he was breaking the law when he posted a picture of his ballot during the 2012 election. The lawsuit stems from the photo posted on Facebook showing Crookston's write-in vote for a friend for a Michigan State University trustee position.

“There’s a fundamental right we all have as U.S. citizens and the First Amendment is one of our most important rights," Crookston told FOX 17. “In this case, they’re really taking away a lot of people’s rights to do something that’s not dangerous."

Klein says the court process has been expedited in hopes of getting a ruling before the Nov. 8 general election.

“The people who are doing (ballot selfies) are not doing it to facilitate vote buying or to intimidate other people," Klein said. "They’re doing it to unequivocally express who they voted for and that’s the most important kind of political speech there is.”

Klein calls the argument being made by the state "baseless" and points to a recent federal appeals court decision in New Hampshire ruling that state's "ballot selfie" ban unconstitutional.

“Certainly voter intimidation and distraction are legitimate concerns and people should not be allowed to advocate or threaten people within the polling places, but a ballot selfie doesn’t really get displayed within a polling place, it goes on social media," Klein said.

Upholding a lower court ruling, the decision in New Hampshire called the state's 2014 law an overreaction to an unsubstantiated concern. Photo- and video-sharing app Snapchat even filed a brief in support of the suit in New Hampshire, arguing that ballot selfies are a legitimate means of "express(ing) support for or against a cause or a candidate."

Elsewhere in the nation, the chairwoman of the Wisconsin state Ethics Commission posted a photo of her presidential election ballot to social media last week, an illegal post under state law there, the Wisconsin State Journal reported Saturday.

U.S. Rep. Justin Amash, R-Cascade Township, retweeted several 'ballot selfies' during Michigan's Aug. 2 primary.

During Michigan's August primary, U.S. Rep. Justin Amash, R-Cascade Township, even retweeted photos from supporters showing they voted for him.

“It's one of the reasons I brought this case," Klein told FOX 17. "Ballot selfies are a fact, they are happening and they’re happening nationwide and in many states where it’s illegal, including Michigan.”

In a Catch-22 situation, Crookston admits he can still face prosecution for the photo he posted in 2012, saying by filing the suit he admitted to a misdemeanor crime.

“It seems like such a silly law, but because it’s infringing on a First Amendment right as citizens it's our duty to stand up for ourselves and so ‘no, you can’t have that,'" he said.

In a request filed for a pre-motion conference on the matter, Michigan Attorney General Bill Schuette argues the restrictions on photography are reasonable and justified by the state’s "longstanding interest in protecting the secrecy of the ballot."

"The challenged provisions... do not prohibit all cell phone use in the polling place, and do not prohibit voters from using other vehicles to express their civic pride in voting, encouraging others to vote, or communicating their voting choices," Schuette wrote. "Accordingly, the challenged statutory
provisions and rules are not underinclusive or overinclusive."