Federal court suspends Michigan’s ‘ballot selfie’ ban

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — Michigan voters should be free to take “ballot selfies” for the first time on Nov. 8, a federal judge ruled Monday, suspending a longstanding ban the state is fighting to reinstate with little more than two weeks to go until Election Day.

The ballot selfie ban will likely be found an unconstitutional restriction on free speech when a lawsuit against the state moves forward, U.S. District Judge Janet Neff wrote in her decision as she issued a preliminary injunction.

In her ruling, Neff prohibited the state from enforcing state laws and rules that prevent voters from taking a photograph of their own ballot and displaying the image outside a polling place, including social media sites such as Facebook or Twitter.

A Portage man who sued the state in early September “persuasively argues that these two laws are not properly tailored but reach and prohibit innocent free speech by voters, who are not implicated by the state’s interest in avoiding vote buying or intimidation,” Neff wrote.

Michigan Secretary of State Ruth Johnson and Attorney General Bill Schuette quickly challenged the injunction, filing an emergency motion for a “stay” with Neff and Magistrate Judge Ellen Carmody in the U.S. District Court for the Western District of Michigan.

Michigan’s presidential election is 15 days away, Schuette wrote in the motion, and the state has already completed election training, including procedures related to bans on ballot exposure and polling place photography.

“Implementing unfamiliar, last-minute replacement procedures would jeopardize the integrity of the election,” said Schuette, whose office is representing Johnson in the case.

The Republican officials requested a response by 5 p.m. Tuesday and, if unsuccessful, could take their case to the U.S. 6th Circuit Court of Appeals.

The injunction is “a really great victory for free speech,” said attorney Steve Klein of the Pillar of Law Institute in Washington, D.C., who is representing plaintiff Joel Crookston in the case and went to school with him at Hillsdale College.

Crookston, 32, sued the state in September, alleging the ballot selfie ban violates the First and 14th amendments to the U.S. Constitution.

“I don’t think this is going to cause too much uproar or enmity,” Klein said, anticipating the prospect of fully legal ballot selfies in Michigan. “It was already happening before we brought this lawsuit, but we just didn’t want people to have to worry they could be thrown in jail.”

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. Related rules prohibited most forms of polling place or voting booth photography.

Willful violations of election law are considered a misdemeanor, but the state had not actively prosecuted violators of the ballot exposure law. Still, Crookston argued the prospect of criminal charges created a chilling effect on speech rights.

Crookston had posted a ballot photo on Facebook in 2012 before realizing it was technically against the law. His suit claimed he would like to do it again were it not for the prohibition.

Johnson and Schuette had already argued against an injunction before the Nov. 8 election, suggesting the public would be “harmed by the disruption that would ensue from last-minute changes to the polling-place procedures.”

Neff said in her ruling that she was “mindful of the importance of an orderly election,” but was “unpersuaded” that the potential burden for the state outweighed free speech rights in question.

The Michigan injunction comes less than a month after a federal appeals court struck down a similar New Hampshire law as unconstitutional.

State Rep. Sam Singh, who introduced legislation to allow Election Day ballot selfies, wrote to Johnson last month asking her to allow “reasonable” polling place photography in light of the New Hampshire case.

The East Lansing Democrat celebrated Monday’s injunction.

“Social media is a powerful tool, and individuals who wish to proudly display their ballots, and hopefully encourage friends to vote as well, should be able to do so,” Singh said in a statement. “When people are excited to vote, they should be encouraged to share that enthusiasm.”