Michigan ‘ballot selfie’ ban stirs court challenge

Jonathan Oosting
Detroit News Lansing Bureau

Social media and the sanctity of the voting place are colliding in Michigan, where a Portage man is asserting a constitutional right to take “ballot selfies” by challenging the state’s long-standing ban on voting station and polling place photography.

Joel Crookston, 32, sued the state in Grand Rapids federal court last month, arguing his First Amendment right to free speech was unconstitutionally limited by state law and policies designed to discourage voter intimidation.

“State law and orders from the Secretary of State threaten Crookston and all Michigan voters with forfeiting their votes, fines and even imprisonment for this simple, effective act of political speech,” attorney Stephen Klein wrote in a request for a preliminary injunction filed in U.S. District Court for the Western District of Michigan.

But the ballot exposure law, which dates back to 1891, helped eliminate what had been problems with vote buying and coercion, said Secretary of State spokesman Fred Woodhams.

The Michigan law and policy “are 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,” Attorney General Bill Schuette wrote in a court filing, defending Secretary of State Ruth Johnson.

A federal appeals court last week struck down a similar law in New Hampshire, noting the state could not document a single instance of voter intimidation related to ballot photos posted on social media.

The ruling was a “game-changer,” said Klein, a Michigan native who attended Hillsdale College with Crookston and now works for the Pillar of Law Institute in Washington, D.C.

“It threw down a gauntlet that while we can have traditional speech restrictions that have been upheld related to (campaigning near) polling places, the law goes too far when it restricts something like ballot selfies,” Klein 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 said of the friend whose name he wrote. “I thought it would be good to have photographic evidence.”

Third party view prohibited

He later learned the social media post could be considered a violation of Michigan election law. While he wasn’t prosecuted, Crookston’s legal complaint says he will refrain from taking ballot photos in the future because he now knows the law.

“It’s kind of a silly thing, for sure,” Crookston said. “But I think anytime the First Amendment is being limited by our government, we have a responsibility to challenge that.”

Michigan law generally prohibits voters from showing their ballots to third parties, directing election workers to mark those ballots “rejected for exposure” and not allow the voter to cast another. Willful violations of election law are considered a misdemeanor.

Woodhams was not aware of any criminal charges having been filed against a voter for ballot exposure.

“The decision to prosecute for a criminal misdemeanor offense would be a matter for a local prosecutor, but the Secretary of State’s office has not and will not instruct local election officials to refer someone found to be exposing his or her ballot for criminal prosecution,” he said.

The federal lawsuit also challenges a Michigan policy prohibiting the use of video cameras, cell phone cameras or other recording equipment inside a polling place. Exceptions are often made for members of the media reporting on elections.

Photography by poll watchers or challengers could “disrupt the orderly conduct of an election and be viewed by some voters as intimidating or coercive,” Elections Bureau Director Chris Thomas said in an affidavit filed by the state.

Crookston’s attorney hopes the case could be decided before the Nov. 8 election. But Schuette is asking the court to deny the request for preliminary injunction, arguing the public “would be harmed by the disruption that would ensure from last-minute changes to polling-place procedures.”

Civic pride debate

State Rep. Sam Singh, D-East Lansing, introduced legislation in March that would allow voters to take photos of themselves or their ballots inside a polling place or voting booth. He acknowledged taking a ballot selfie in 2008, before he knew it was prohibited, and ended up taking it down from Facebook a day or two later.

“I got away with it like a lot of people do, but why have rules on the books that are not really meant to be enforced?” he said.

Singh’s bill has has been stuck in committee, but he hopes the federal appeals court ruling will spur consideration.

The timing of any possible hearing would be up to the chair of the House Elections Committee, said House Republican caucus spokesperson Gideon D’Assandro. Rep. Lisa Lyons, R-Alto, chairs the committee but did not respond to a request for comment.

“Every individual has the constitutional right to vote, and why shouldn’t they be able to document it?” Singh said, noting some voters may want to show off their ballots as a matter of civic pride.

“I can see a situation where a lot of people will be proud to vote for the first woman president,” Singh said, referencing Democratic nominee Hillary Clinton. “But whatever the reason, voters have a right to their own ballot, and if they want to take a picture of it, that is their right too.”


State election law

Excerpts of what Michigan election law and rules say about the improper “exposure” of ballots.


■Before leaving the booth or voting compartment, the elector shall fold his or her ballot or each of the ballots so that no part of the face shall be exposed. The elector shall at once deliver in public view the ballot or ballots to the inspector designated to receive the ballot or ballots. The inspector shall tear off the corner of the ballot ... and shall then in the presence of the elector and the board of inspectors deposit each ballot in the proper ballot box without opening the ballot.

■If an elector shows his or her ballot or any part of the ballot to any person other than a person lawfully assisting him or her in the preparation of the ballot or a minor child accompanying that elector in the booth ... after the ballot has been marked ... the ballot shall not be deposited in the ballot box, but shall be marked “rejected for exposure,” and shall be disposed of as are other rejected ballots. If an elector exposes his or her ballot ... the elector shall not be allowed to vote at the election.


■The use of video cameras, still cameras and recording devices by voters, challengers and poll watchers is prohibited in the polls during the hours the polls are open for voting. (This includes the video camera, still camera and recording features built into many cell phones).

Source: Michigan Compiled Laws and Secretary of State’s Office