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Judge rules Michigan ‘ballot selfie’ ban cannot be enforced

Posted at 4:26 PM, Oct 24, 2016
and last updated 2016-10-24 18:39:44-04

GRAND RAPIDS, Mich. — Michigan’s ban on so-called “ballot selfies” — the act of taking a picture of one’s marked ballot — cannot be enforced during the upcoming Nov. 8 general election, a federal judge ruled Monday.

The ruling issued Monday afternoon is a preliminary injunction ordering Michigan’s Secretary of State to not enforce the ban against photographing one’s own ballot or displaying a photo taken of a ballot outside of a polling place.

“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held,” according to the motion.

However, the secretary of state has asked the judge to freeze her order so it can file an appeal. If appealed, the Sixth Circuit Court of Appeals would have to agree to hear the case before Election Day in order to keep the ban from being enforced by the state.

Attorney Steve Klein with the Pillar of Law Institute, who filed the lawsuit on behalf of Crookston, called the judge’s decision a “powerful, but narrow ruling.”

“This does not mean Michigan voters can indiscriminately use cameras in polling places or take selfies. What they can do is, after they’ve marked their ballots in a voting booth, take a picture of it and post that photo online,” Klein said by email on Monday.

“The case is not over, but to have this injunction before Election Day is a big step.”

Voters still cannot display marked ballots in the polling place, meaning they cannot hold them up to take a “selfie” alongside their marked ballot, he said.

The lawsuit, filed by Portage resident Joel Crookston on Sept. 9, challenges the restrictions on photographing marked ballots arguing it’s a violation of free speech.

In a response filed in October, the State called the suit a “self-created emergency,” claiming Crookston could not show the law is unconstitutional, while arguing a new, last-minute change to procedures would be “highly disruptive” in the state’s 4,800 precincts which could compromise a “fair and orderly election.”

Below is a portion of the opinion issued Monday by U.S. District Court Judge Janet Neff:

“While fully mindful of the importance of an orderly election, and the amount of time left until the November 8, 2016 election, the Court is nonetheless unpersuaded that the burden to Secretary Johnson is a factor that tips the balance against issuance of the proposed preliminary injunction. The relief requested, to preliminarily enjoin enforcement of the laws and orders prohibiting the photographing of one’s own ballot and display of such photographs outside of polling places, differs in both character and burden from the relief requested in cases cited by Secretary Johnson, e.g., to add candidates or initiatives to ballots.”

“…The Court agrees with Plaintiff that the interests in the integrity of the electoral process can be secured in a more reasonable manner than the blanket prohibition on citizen photography…”

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

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

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

According to state statute, taking pictures or videos in a polling place is considered an “election day offense,” with the only exception being for credentialed 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 law—which has been enacted since 1891—was passed to curtail the practices of vote buying and ballot exposure, which were common place in elections in Michigan and across the United States prior, Fred Woodham, spokesperson for the state bureau of elections, previously told FOX 17.

Asked for a response to the ruling on Monday afternoon, Woodhams said the state was still reviewing the judge’s decision.

There are laws against sharing any photo of your ballot in 18 states, while six other states bar photography in polling places but do allow photos of mail-in ballots, according to a review by The Associated Press.

A recent federal appeals court decision in New Hampshire ruled that state’s “ballot selfie” ban unconstitutional. Upholding a lower court ruling, the decision in New Hampshire called the state’s 2014 law an overreaction to an unsubstantiated concern.

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

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 last month. “Ballot selfies are a fact, they are happening and they’re happening nationwide and in many states where it’s illegal, including Michigan.”