The New York State and New York City laws prohibiting voters from taking selfies with their completed ballots do not infringe on the selfie takers’ First Amendment rights and are crucial for maintaining the integrity of elections, a federal judge ruled in a suit challenging the law.
New York’s interest in the integrity of its elections is “paramount,” said U.S. District Judge Kevin Castel of the Southern District of New York Thursday, and while the vote buying that was endemic to American elections in the 19th century is now rare, a “handful” of vote-buying schemes have been uncovered in recent years, and the U.S. Attorney’s Office for the Southern District of New York is currently prosecuting the perpetrators of a vote-buying scheme.
The law prohibiting ballot selfies, the judge said, prevents “history from repeating itself.”
“The lack of evidence of widespread vote buying and voter intimidation in contemporary New York elections does not mean that the state no longer has a compelling interest in preventing these evils,” Castel said.
As for the First Amendment concerns of the three plaintiffs in the case, who sued before the November elections last year, the laws are constitutional.
With regard to the city’s law, Castel said it can help abate long wait times, which potentially cause voter suppression.
Assistant corporation counsels Stephen Kitzinger and Evan Schnittman appeared for the city’s Law Department. Assistant attorneys general Bradford Glick, Christine Ryan and John Schwartz appeared for the state.
Leo Glickman and Amy Robinson of Stoll, Glickman & Bellina appeared for the plaintiffs.
The 127-year-old law at issue in the case, enacted as part of the Australian ballot movement in the U.S. that resulted in the implementation of the secret ballot, was originally intended to prevent voters from showing each other their completed ballots.
James Gardner, a professor at the University of Buffalo School of Law who specializes in constitutional and election law, said vote buying was “rampant” before implementation of the secret ballot, which all but snuffed it out.
During the trial for New York’s ballot selfie case, Silberman v. Board of Elections for the State of New York, 16-cv-8336, a political science professor testified that, while vote buying may be virtually eliminated, more “subtle” forms of coercion may exist today in the form of pressure from relatives, friends or employers, and thus they may feel compelled to share their completed ballots via a social media platform.
As for applying the law to the present-day phenomenon of taking selfies, Gardner said that years ago, he might have said he wouldn’t see taking ballot selfies as much of problem. Today, however, “look at the stuff people are willing to do to sway elections.”
“I would say let’s not screw around with something that’s working,” he said.
While the selfie-takers may be deterred in New York, courts around the country that have weighed in on the issue are not in lockstep.
Before Election Day last year, U.S. District Judge William Alsup of the Northern District of California denied the American Civil Liberties Union’s bid to block enforcement on California’s ballot selfie ban.
But last September, the U.S. Court of Appeals for the First Circuit found for the ACLU that New Hampshire’s selfie ban infringes on free speech rights and is “antithetical to democratic values.”