After a Madison County man sued the county clerk because he was prevented from taking a picture of himself as he cast a ballot on Election Day, a judge declared Illinois’ “ballot selfie” law unconstitutional.
Oral arguments in the suit took place in late June before Madison County Associate Judge Clarence Harrison. Harrison then issued an order that the statute itself is unconstitutional and should not be enforced.
The plaintiff, William Rogers, went to vote at his assigned Wood River location on Nov. 8. He wanted to take a selfie with his ballot, according to his suit, but was instructed not to do so by an election official. He never took the selfie, according to the suit.
In Illinois, it is a Class 4 criminal felony for “any person who knowingly marks his ballot or casts his vote on a voting machine or voting device so that it can be observed by another person.”
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Rogers argues in the suit that the law is an “overbroad, unconstitutional assertion” of the state into the integrity of the electoral process and a violation of Rogers’ First Amendment rights.
He had no comment outside the suit. In addition to court costs and monetary damages up to $250, Rogers asked for an injunction declaring the ballot selfie law unconstitutional.
Madison County’s attorneys argued that the statute was necessary to prevent vote buying and voter intimidation, and preserving the secrecy of the ballot.
Harrison did not go so far as to include the policies of the Madison County County Clerk’s office, however. John Gilbert, the attorney representing Madison County, said there are still remaining issues to be discussed, not the least of which is whether the clerk’s office will appeal. The judge still has to decide on damages, though the suit only asks for $250, attorney’s fees and court costs.
“It’s really about the state of the law,” Gilbert said. “He isn’t demanding much in damages.”
Gilbert said the decision whether to appeal will be made after the judge’s rulings on damages. “This clearly has repercussions beyond the county,” he said.
County Clerk Debra Ming-Mendoza said that the Illinois State Board of Elections’ recommendation to discourage voters from taking selfies remains. She said while she will abide by the law, she has concerns about the implications of the ruling.
“My job is to protect the privacy of that ballot, and my concern from the beginning was to prevent someone from being coerced to prove how they voted, and the privacy of the person standing next to them,” Ming-Mendoza said.
Ming-Mendoza said they will have to examine practices to see how they can abide by the ruling while still protecting the privacy of others in the voting booths.
“We may have to ask the individual to step into an area where it won’t invade the privacy of other people,” she said. “It really hasn’t been an issue, maybe once or twice in an election someone wants to do it. It’s never been about taking a selfie in a booth; it’s more often ‘This is my daughter’s first time voting.’ We always allowed that near the door... but now the issue is people who want to take a selfie with their ballot.”
Laws against showing one’s vote were written in the Progressive Era, when they were enacted as protection against vote buying and voter intimidation, according to Steven Macias, an associate professor at the Southern Illinois University at Carbondale School of Law.
The Progressive Era, a period of political reform in the early 1900s, saw many changes to the voting system, including the secret ballot, referenda and the direct election of senators, that were meant to transfer power back to average people and away from the wealthy and big businesses, Macias wrote in an email.
“Imagine that an employer demanded that his employees photograph their ballots and then show them to him,” Macias explained in an email. “Even if the boss didn’t demand that the employees vote a certain way, so long as the employees know their boss’ political leanings, they would be unlikely to vote against his wishes. The statute helps prevent situations like this from occurring.”
Today, as ballot selfies become more popular, more of the laws against them are being challenged, Macias said. An appellate court struck down a similar law in New Hampshire last year. Other states are also taking up “ballot exposure” laws.
Rogers’ attorney, Peter Maag of Wood River, cited the New Hampshire case in his filings: Rideout v. Gardner went to the 1st Judicial Circuit in New Hampshire in 2016, which held that the law prohibiting ballot selfies was unconstitutional. According to the Harvard Law Review, New Hampshire’s justification of preventing vote buying and coercion was “insufficiently strong” to override the First Amendment implications.
The New Hampshire law stood from 1911 until it was amended in 2014 to specifically prohibit digital photographs of a marked ballot and distribution by any means, including social media. In that case, two of the defendants were political candidates taking selfies with their marked ballots; the third was a citizen who wrote in his dog’s name and posted the ballot on social media. In April, the U.S. Supreme Court declined to hear the case, which allowed the lower court’s ruling to stand and the New Hampshire law remains unconstitutional.
Maag sent a claim of unconstitutionality to the Illinois Attorney General’s Office in November. Shortly thereafter, the deputy attorney general sent Maag a notice that the state would not intervene in Rogers’ case, according to court records.
In Macias’ opinion, ballot exposure laws still play an important role in protecting voters. Although there haven’t been problems with taking advantage of voters, that’s because the laws have been working. If states repealed them, voter intimidation and other problems could return.
It’s possible that there could be compromises on the ballot selfie, including taking a picture of one’s ballot before voting or taking a picture far enough away from the ballot that candidates’ names are unexposed, but, so far, Macias said he hasn’t seen those ideas taken up.
In the future, he said, he expects to see more laws enabling voters to take pictures, a process that a couple of states have begun, including Illinois.
A House bill would make ballot selfies legal so long as voters don’t accept money for it. The state House passed the bill 97 to 14. It is now in the state Senate.
The next court date for Rogers’ suit in Madison County is set for October.