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Michigan set to allow ballot pics under 'selfie' settlement

Jonathan Oosting
The Detroit News
Joel Crookston of Portage takes a selfie during the House Elections Committee meeting on Dec. 12, 2018.

Lansing — Michigan plans to allow residents to photograph their own ballots while voting under a settlement agreement between Secretary of State Jocelyn Benson and a Portage man who sued over a longstanding "ballot selfie" ban.

Details of the agreement were submitted Wednesday to Grand Rapids U.S. District Judge Janet Neff. Both sides are asking the judge to approve the deal and dismiss the federal lawsuit. 

Plaintiff Joel Crookston sued the state in 2016, arguing his First Amendment right to free speech was unconstitutionally limited by state law and policies designed to discourage voter intimidation.

The settlement would limit ballot photography to the voting booth, not other areas of a polling location. And voters could only take pictures of their ballots, not selfies of themselves. 

Benson’s office said the deal will not affect other prohibitions on photography in a voting location or sharing ballot images within 100 feet of the polling place, a buffer zone where electioneering is not allowed.

“We reached a resolution that allows voters to have a full opportunity to express themselves, while at the same time ensuring that voters retain the ability to vote in private and without disruption or discomfort,” Benson said in a statement.

“As Michigan’s chief election officer, I am committed to policies that encourage and support voter participation and engagement, along with elections that run smoothly and securely.”

Benson reached the deal with Crookston before Tuesday’s election but waited until the day after to file with the court in an attempt to prevent confusion. The state plans to revise its ballot photography rules before the Aug. 6 election.

Attorney Stephen Klein, who represented Crookston in the case and is legal counsel for the Pillar of Law Institute, called the agreement “a big win for a simple act of free speech, voting integrity, and common sense.”

As part of the agreement, Crookston agreed to withdraw his other challenges to Michigan polling place photography and ballot exposure laws.

“The settlement is fair,” Klein said. “Photographs of marked ballots — or ‘ballot selfies’ — were the reason for this case, and in that sense it’s a total victory for Joel.”

Former Secretary of State Ruth Johnson's office had fought the lawsuit, arguing Michigan ballot exposure laws, which dateto 1891, helped eliminate what had been problems with vote buying and coercion.

The Michigan ban was "justified by the state’s long-standing interest in protecting the secrecy of the ballot and protecting those who seek to exercise their right to vote from distraction, harassment or intimidation,” then-Attorney General Bill Schuette's office wrote in a 2016 court filing for Johnson.

Attorney General Dana Nessel, elected alongside Benson last fall, said in a statement that the secretary of state has unique "purview" to revise ballot photography instructions as the state's chief election officer. 

"The instruction, which allows limited ballot photography but not ‘ballot selfies’ or other photography, strikes an appropriate balance between the freedom of speech and the need to protect the secrecy of the ballot and the decorum of the polling place," Nessel said.

Crookston had posted a photo of his ballot on Facebook in 2012, showing his friends he had cast a write-in vote for a former college classmate as one of his two selections for Michigan State University trustee.

“We always joked about him being some big politician some day,” Crookston told The Detroit News in 2016. “I thought it would be good to have photographic evidence.”

He later learned the social media post could be considered a violation of Michigan election law. While he wasn’t prosecuted, Crookston argued the law would discourage him from taking ballot photos in the future.

Michigan lawmakers have debated ballot selfie legalization bills for several years. The House Elections Committee advanced a plan in December but it did not see a floor vote before the end of the two-year session.

State Rep. Steven Johnson, R-Wayland, reintroduced the legislation in February, noting that voters across the country “increasingly are sharing pictures of their ballot as a way to show support for candidates and issues.”

Ballot selfies are allowed in twenty other states, according to Johnson’s office. His proposal has 25 co-sponsors, including Republicans and Democrats.

Johnson said Wednesday he will likely confer with House legal counsel to determine if legislation is still needed or warranted in light of the settlement. While his proposal would also allow voters to take pictures of themselves, he said his main goal has always been ensuring voters can exercise free speech rights by showing others who they voted for.

“I think that’s far more important than being in the picture,” he said.