It’s election time again. And that means nothing but Instagram photos of people’s “I Voted” stickers, long lines at polling places, and the occasional celebrity taking an ill-advised voting booth selfie. And this election cycle comes with an added wrinkle: Taking a photo of your ballot and posting it from the comfort of your couch. Which begs the question: Is it illegal to take a voting booth or ballot selfie?
The short answer is: Possibly—depending on where you live. Though, assuming you’re not taking the photo for some dark and evil purpose, your chances of being prosecuted are low. (But that’s not an excuse to do it!)
The reason for this has nothing to do with being a Luddite and everything to do with the integrity of the voting process in three main ways: vote buying, undue influence, and voter intimidation.
Vote Buying and Voter Influence
In 2012, a North Carolina voter brought his smartphone to the polling booth. He had made his notes of which candidates he wanted to vote for on his phone, took out his phone to read the list, and was immediately descended upon by election officials, who ultimately made him leave the room, make notes on a piece of paper, and then return to cast his vote. As local NBC affiliate WRAL explained, there were two problems: The first was that, by having a cell phone, he could be texting someone and receiving information about who to vote for.
The second point was that if some criminal spent large sums of money to buy votes, the only way they could tell if a voter had followed their instructions would be with a picture (widespread vote buying in the late 19th century is a major reason we now have secret ballots). WRAL even mentioned stories of criminal syndicates giving people cell phones to document their votes in the polling booth. North Carolina has since relaxed its rules so that you are allowed to bring a cell phone into the booth with you, but you’re still not allowed to communicate or take pictures.
Of course, these points are slightly weakened due to the proliferation of absentee voting. In 2000, a satirical website, Vote Auction, appeared. The premise was that you would auction off your vote and then fill in an absentee ballot. That absentee ballot would be sent off, verified, and mailed to the correct polling place.
The website, of course, was ridiculously illegal and was quickly shut down (the webmaster claimed it was a protest against the role of money in government), but it became another example of the increasing worries about how the internet would affect voting.
The issues of bribery and coercion came to the fore in a recent case against New York’s anti-ballot selfie law. On appeal, U.S. District Judge Kevin Castel examined New York State’s ban on ballot selfies, quoting a New York co-chair of the Board of Elections as saying the “economic and political motivations for voter bribery still exist, but the ability to carry out such a scheme is significantly hampered by the prohibition” of things like ballot selfies. Castel also notes another issue: The time it takes to get the perfect ballot selfie increases the waiting time for the people behind you, and that would likely decrease voter participation.
Ultimately, Castel ruled in favor of the prohibition, saying that while it was true ballot selfies were “a potent form of speech,” there were “other forms of visual display of candidate support [that] may be as compelling or nearly as compelling without the attendant dangers outlined herein.”
A closely related sibling to vote-buying is voter influence—and this is where it gets dicey for celebrities. If it’s obvious a major star is voting for Candidate X, their fans may want to emulate that celebrity. In countries with strong anti-influence election laws, like New Zealand, the Electoral Commission cautions: “Posting a photograph of a completed voting paper online on election day could breach the election day rules, because the Electoral Act prohibits publishing a statement on election day that is likely to influence how another voter should vote.”
There’s another worry about selfies at polling places: other people. According to HuffPost, in 1994 there were concerns that videos of polls in the South were “thinly veiled attempts to intimidate Black voters at the polls.” And in the 1960s, there were reports that Texas Rangers were “in Mexican-American districts and used cameras, apparently taking pictures of the voters.” While these cases were never pursued, they helped create a wave of photographic restrictions not just in the polling booth, but in the areas around them as well. Which makes sense, as the person behind you in line may not want anyone to know that they’re voting.
How About At-Home Selfies?
Technology moves quickly, and it is much easier to take a photograph at home than at a polling booth. But state laws vary wildly.
North Carolina says flatly, “No person shall photograph, videotape, or otherwise record the image of a voted official ballot for any purpose not otherwise permitted under law.” But Arizona, for instance, is less clear, with one law stating, “A person may not take photographs or videos while within the 75-foot limit [of a polling place]” while another law allows a voter to post an image of their own ballot on the internet. Because of these two laws, it’s widely agreed that Arizona permits the posting of mail-in ballots only. Though due to rapidly changing conditions and legislation, it’s best to check the laws in your state and/or city before posting a snap. And the concerns don’t go away because it’s not in the polling booth.
In 2019, some Oklahoma lawmakers were working on a bill to clarify the legality of both regular and absentee ballot selfies, but then-state senator Jason Smalley was concerned, telling Public Radio Tulsa: “An individual could gather a ton of absentee ballots and create a persuasion campaign, purchase clicks, and start generating buzz prior to the election that an individual’s getting more and more and more and more support because of the absentee language.” (Another state senator, Lonnie Paxton, disagreed. Saying “I mean, today an individual could get killed by a goldfish, but it’s not likely.”)
Will I Get Prosecuted?
Tough to tell. Several states don’t even really have enforcement mechanisms for the law (for a list of state laws, see here). The ACLU has been fighting several high-profile cases regarding these bans, with varying levels of success. So whether you take a selfie or not, you’re participating in the long struggle between freedom of speech and a free election.
This story has been updated for 2020.