Please, Children...Restrain Yourselves

     You're not gonna believe this, kids. I just found out that when we all arrive at the polls this coming Tuesday, there will be some who might be tempted to capture and post a selfie with their completed ballot! Really, Boss? Are you kidding me? I know, I know. But it's true...honest! I had no idea this was…a thing! I guess it's to let all the followers of these particular nitwits know who they voted for. Or maybe it's nobler than foodstagramming. Really? Foodstagramming? Yes, Sancho…Foodstagramming. I weep for the future of this nation. Anyway, whatever the motivations are, it seems that questions arise about the practice's legality and whether the First Amendment's guarantee of free speech bars states from blocking ballot selfies. Boss, you humans are the most idiotic mammals on the planet. Don't I know it, my little friend.

    Now, at the risk of repeating myself, because I'm a DORK, I did a little digging into this matter. You really need more hobbies. Let’s assume for argument’s sake that, despite statutes promoting ballot secrecy and voting integrity, the First Amendment safeguards both silent, non-disorderly, ballot-selfie taking and publishing those images after exiting a polling place. The rationale is that these are exercises that fall under the definition of “core political speech” and “individual self-realization.” Even if that’s true, here’s a plea for self-restraint by all those who might be involved: (1) would-be ballot-selfie takers; (2) government officials who would aggressively act against them; and (3) aggrieved ballot-selfie takers who want to (and sometimes do) sue government officials who are enforcing state laws. And you know who YOU people are.

    I think most of us can agree there are more important hills on which to plant one’s First Amendment flag and spend a judge’s time as opposed to safeguarding a selfie. Similarly, government officials undoubtedly have more significant tasks than tracking down and going after people who discreetly take ballot selfies in non-disruptive, non-distracting ways. 

    Trying to abide by one of my many rules of life, just because we can do something, and it's covered by our First Amendment, doesn't mean we SHOULD do it, right? C'mon, work with me here. Exercising "phone-off politeness" and solemnity inside polling places and voting booths (especially booths not concealed by curtains and where nearby voters can be distracted by LOOK-AT-ME selfie takers and even end up in the photos themselves) is a good thing. "Just saying no" to your inner ballot-selfie request forestalls possible confrontation with poll workers and even potential lawsuits, while at the same time allowing poll workers to concentrate on the really critical tasks of ensuring orderly operations and guarding against more pressing issues like, oh, I don't know, preventing voter fraud, intimidation, or coercion. Do you feel me, people? Someone make him stop...

    Now you might ask where the law stands on ballot selfies––their taking and their publication? Well, your intrepid essayist already did the homework for you! Pretty good, huh? And there's no paywall for any of this! You're an idiot. Anyway, there is no federal statute with a set of rules for everyone, just a patchwork of state statutes, including some that allow it and some that don't; these include bans in polling places and rules prohibiting letting others see another person's completed ballot to let them know how the person voted. Thanks to an idiot in North Carolina, one Susan Hogarth, a ballot-selfie taker and online poster, challenged North Carolina's statutes that banned the selfies, which then led to ballot selfies being legal in 31 states. That said, a Professor David Hogarth of Belmont University says that "it would likely take a U.S. Supreme Court decision in a ballot-selfie case to definitively resolve the issue" of whether banning their taking and posting violates the First Amendment. 

    And what do lower courts say? Well, in a 2016 opinion involving a challenge to a Michigan statute, the US Court of Appeals for the Sixth Circuit observed that: "many Michigan voting stalls...are simply tall desks, placed next to each other, with three short dividers shielding the writing surface from view. In this setting, posing for a ballot selfie could compromise the secrecy of another’s ballot, distract other voters, and force a poll worker to intervene.

    The case culminated in 2019 with a settlement agreement in which Michigan agreed to “amend [its] polling place photography and cell phone instructions to allow voters to photograph their own marked ballot within a voting station or voting booth.” The settlement, however, didn’t change Michigan’s prohibition on individuals...[t]aking ‘selfies’ of themselves, either in the voting booth or anywhere within the area where people are voting...[or] [t]aking any other type of photograph within the area where people are voting." 

    On the other hand, the First Circuit in 2016 in Rideout v. Gardner rejected speculative and hypothetical arguments by New Hampshire that its law banning ballot selfies was justified by interests in preventing “vote buying or voter intimidation.” The Court added that “even accepting the possibility that ballot selfies will make vote buying and voter coercion easier by providing proof of how the voter actually voted, the statute still fails for lack of narrow tailoring.” In short, New Hampshire engaged in legislative overkill (as courts sometimes do) because it “had not demonstrated that other state and federal laws prohibiting vote corruption are not already adequate to the justifications it has identified." 

    Embracing the First Amendment side of the equation, the First Circuit wrote that “[b]allot selfies have taken on a special communicative value: they both express support for a candidate and communicate that the voter has in fact given his or her vote to that candidate.” It called ballot selfies “core political speech." 

    Look, I love my iPhone. If for no other reason than my music travels with me everywhere, and I can take, what I hope, are beautiful photographs and share them with other people. I love that it puts a computer in my hand, while despising the fact that anyone, anywhere in the world can contact me whenever they damn well please. It's annoying, even when I know I don't have to answer the call or return the e-mail or text. It's almost like you're never alone. But, and there's always a BUT. I know that if I ever get in a tough spot, I can call for help. And if I do want to talk to someone and share an insight, or a great golf shot, I can do that! Like most things in life, cell phones are wonderful, technological inventions, as well as a gigantic pain in the ass. And sometimes it makes you do juvenile things.

    So, my loyal readers, whoever you are; if you are inclined to take a “ballot selfie,” here's a self-help solution for those of you on the far right side of the narcissistic bell-curve: Please, wait a minute after voting, exit the polling place visibly sporting an “I Voted” sticker, and take a smiling photo of your beautiful self near (or holding) a sign for your favorite candidate, perhaps giving a thumbs-up or peace-sign, or even a middle-finger gesture (that's protected speech, too). Same message: “I voted for this person.” And again, everyone...DON'T FORGET TO VOTE!

write to Peter: magtour@icloud.com