Dylan Scott is a GOVERNING staff writer.E-mail: email@example.com
Before submitting their electronic ballot or handing their paper ballots to a poll worker Tuesday, some Americans (let’s be honest: most of them young) snapped a quick picture of their votes on a smartphone and uploaded it to the social network of their choice. Twitter, Facebook, Instagram, etc. It was, you could argue, a proud declaration of having performed their civic duty.
It was also, in more than 30 states, illegal.
According to the Citizen Media Law Project, a Harvard University think tank, 34 states have rules explicitly forbidding the public display of one’s ballot on any platform—including the Internet. Another nine have language that could possibly prohibit the practice, but the language is unclear.
The laws are largely older, maybe even old-fashioned. Most were drafted to prevent voter fraud, says Jeff Hermes, director of the Citizen Media Law Project; in a bribery scheme, for example, a voter might have to prove they voted as they were supposed to by showing their ballot. There is also a more fundamental concept of the “secret ballot”, which would be contradicted if someone publicly shows how they voted.
“If you stop people from displaying their own ballots, you remove the ability of somebody trying to purchase votes from proving the vote has been bought,” Hermes says. “And if people are routinely allowed to display their ballot, then that leads to a culture of disclosure.”
2012 was arguably the first year where the practice of posting one’s ballot on Facebook or Twitter gained national attention, even earning a write-up in the Wall Street Journal. Most state laws appear to cover the practice, but it also reflects that legislatures were working in a different time when those laws were passed, Hermes says.
"I would suggest that there was far more of this going on in this election than in 2008. I can't prove that. That's just the sense that I was getting," he says. "The issue is less about the technology than it is about the disclosure of the ballot. But prior to the invention of cell phones, the idea that somebody could go into a voting booth, take a picture and post it later—that just probably wasn't in the legislature's consciousness.”
The laws also raise some interesting First Amendment questions. People are generally free to tell others how they voted, and nobody questions whether somebody could post a Facebook status (without a picture) that explains who they supported in the election. Some legal experts have questioned whether penalizing the transaction of voter bribery—charging someone for the act of paying the voter, rather than focusing on the voter’s display of their ballot—would be sufficient to stop fraud without raising larger questions about free speech, Hermes says.
Some states seem to be mindful of those concerns. In 2011, Maine repealed its state law that made it a crime for a voter to show someone else their ballot. Oklahoma’s law forbids displaying a ballot while in the voting enclosure, but, presumably, you would be safe if you posted a picture later after leaving the polling station. New Hampshire law specifies against revealing how you are ‘about’ to vote, which again leaves open the door for posting a picture later.
Regardless, Hermes says, states might do well to revisit their policies after what happened this year. Social media, as Governing explored in the July issue, is frequently forcing state legislatures to reexamine their law books at a time when Facebook statuses and Instagram pictures are redefining the meaning of ‘speech’.
“The concern is that there needs to be balance between protection of the vote and protection of First Amendment, two fundamental ways in which the American system protects itself,” he says. "These concerns begin to become less pressing as you move away from the polling place. Might it not be enough to enforce the laws on vote buying? Because the question is: Are these laws adequately limited so as to not affect free speech rights?”
Governing compiled the map below fn state laws on public displaying one's ballot, based on the Citizen Media Law Project's data.
States shaded red have laws prohibiting photographing/filming of ballots; rules in gray states are unclear; white states have no laws.
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