A group of activists has challenged New York State’s law banning “ballot selfies,” and a federal judge has asked officials why he shouldn’t strike it down altogether.
Yesterday afternoon, Judge P. Kevin Castel issued an order to show cause requiring New York State election officials to defend the constitutionality of the state law, which prohibits New York voters from taking a photograph of their election ballots, typically inside a voting booth, and posting them on social media.
The order comes in a federal civil rights lawsuit filed on behalf of three New York activists, Eve Silberberg, Jennifer Rebecca White, and Michael Emporer, filed by attorneys Leo Glickman and Amy Robinson.
“Each election season, I see people put photographs of their ballot on social media, only to see them take it down after their friends and family warn them it’s illegal,” Glickman, the lead lawyer on the case, told the Voice.
The issue of ballot selfies and voter freedom received heightened attention this week, when Justin Timberlake Instgrammed a photograph of himself casting an early ballot in a Tennessee voting booth.
“Hey! You! Yeah, YOU! I just flew from LA to Memphis to #rockthevote !!! No excuses, my good people! There could be early voting in your town too. If not, November 8th! Choose to have a voice!” Timberlake wrote in the caption.
Thanks to Justin Timberlake’s selfie gaffe, we have a handy dandy guide of 5 things you can’t do in a voting booth https://t.co/ByakCj67V8
— BBC News (World) (@BBCWorld) October 27, 2016
On Tuesday morning, after news reports indicated that Timberlake may have broken Tennessee law in posting the image, the post was deleted from Timberlake’s Instagram account. At first, the local prosecutor’s office said it was investigating Timberlake, but by the end of the day issued a statement saying it was not.
Laws governing ballot selfies vary from state to state, with some allowing them, others discouraging but not penalizing them, and some states criminalizing them with fines and possible prison sentences. In New York, Election Law section 17-130(10) prohibits the practice, on pain of criminal penalties, including up to one year in prison and a $1,000 fine.
To date, laws against ballot selfies have been struck down as unconstitutional under the First Amendment in three states: New Hampshire, Indiana, and – as of this past Tuesday – Michigan.
The Boston-based First Circuit Court of Appeals, ruling in the challenge to the New Hampshire statute, called the state’s reasons for the proscription of ballot selfies “unsubstantiated and hypothetical,” while the District Court in Indiana invoked Supreme Court Justice Louis Brandeis’s famed dictum:
Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
The defendants in the New York lawsuit are state and city election officials, as well as the District Attorneys of Manhattan and Brooklyn, Cyrus Vance and Eric Gonzalez, respectively.
In the order issued yesterday, Judge Castel gave them until November 1 – seven days before the November 8 election – to answer the lawsuit, and explain why New York’s ban on ballot selfies should be allowed to survive.
Spokespersons for the defendants could not be immediately reached for comment.