Ballot selfies are still illegal, at least in New York.
While recognizing that ballot selfies “are a potent form of speech presumptively entitled to First Amendment protections,” a federal judge in Manhattan yesterday invoked the ghosts of Tammany Hall to deny a last-minute request to issue a preliminary injunction blocking enforcement of a New York law that prohibits them.
The ruling, by Federal District Judge P. Kevin Castel, allows state and local election officials in New York to enforce a ballot-selfie ban in the coming November 8 election.
The attorney who brought the case on behalf of a trio of activists, Leo Glickman, said he was “disappointed” by Judge Castel’s ruling, but looked forward to fighting the case going forward.
“We believe strongly that the law is unconstitutional,” Glickman told the Voice.
The law at issue, New York State Election Law § 17-130(10), is 126 years old. It prohibits the exhibition of an executed election ballot “to any person so as to reveal the contents.” Violation of the law is a misdemeanor, punishable by up a year in jail and $1000 fine.
Citing a Tammany Hall vote-buying scheme reported in a New York Times article from 1890, Judge Castel wrote that “the absence of recent evidence of this kind of voter bribery or intimidation does not mean that the motivation to engage in such conduct no longer exists. Rather, it is consistent with the continued effectiveness of the New York statute.”
But Judge Castel’s ruling did not definitively rule New York’s ballot selfie ban to be constitutional. Instead, it relied on the disruption to election order a last-minute change to election rules would impose, “as well intentioned voters either took the perfectly posed selfie or struggled with their rarely-used smartphone camera. This would not be in the public interest, a hurdle that all preliminary injunctions must cross.”
Judge Castel also said that smartphone technology might increase the risk of voter intimidation.
“Without the statute,” he wrote, “employers, unions, and religious groups could encourage their members to upload images of their marked ballots to a single location to prove their commitment to the designated candidate. Those who declined to post a selfie could be swiftly outed and subjected to retaliation.”
Glickman indicated that a few members of the state legislature have expressed interest in legalizing the practice. “One way or another ballot selfies will be legal by the next election,” he says.