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Ballot Selfies Still Illegal in New York

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4.Nov, 2016 Comments Off on Ballot Selfies Still Illegal in New York , , , Election Administration

Ballot Selfies Still Illegal in New York

The U.S. District Court for the Southern District of New York, in Silverberg v. Board of Elections of the State of New Yorkrefused to enjoin New York’s prohibition of ballot selfies, finding (internal citations omitted):


Plaintiffs’ important First Amendment rights must be reconciled with the cherished right to vote. Courts have held that an individual’s right to speech related to a political campaign must give way, for example, to a state-imposed restriction that prohibits campaigning within 100 feet of an entrance to a polling place.

At issue is N.Y. Elec. Law § 17-130(10), which provides that “[a]ny person who . . . [s]hows his ballot after it is prepared for voting, to any person so as to reveal the contents . . . is guilty of a misdemeanor.” The provision, enacted 126 years ago, was part of 19th century legislation popularly known as the Australian ballot reforms. The statute did not merely offer the voter the option of voting in secrecy, but mandated it, and for good reason. As Justice Blackmun noted in Burson, the nation had been plagued with voter bribery prompted by ballots that political parties “often printed with flamboyant colors, distinctive designs, and emblems so that they could be recognized at a distance.” The problem was not resolved by standardized ballots because “the vote buyer could simply place a ballot in the hands of the bribed voter and watch until he placed it in the polling box.”

Because of the statute, those who would engage in ballot policing, for the purpose of bribery or to enforce orthodoxy among members of a group, whether members of union, employees of a company, or members of a religious group, have longed been deprived of an essential tool for success. 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.

This action was commenced 13 days before the presidential election, even though the statute has been on the books longer than anyone has been alive. Selfies and smartphone cameras have been prevalent since 2007. A last-minute, judicially-imposed change in the protocol at 5,300 polling places would be a recipe for delays and a disorderly election, 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.

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