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Michigan takes ‘ballot selfie’ fight to appeals court

Jonathan Oosting
Detroit News Lansing Bureau

Lansing – A federal judge on Wednesday refused to reverse her order that would allow Michigan voters to take “ballot selfies” for the first time on Nov. 8, a decision the state is appealing with less than two weeks until Election Day.

Michigan’s blanket ban on ballot exposure and polling place photography is likely unconstitutional, ruled U.S. District Court Judge Janet Neff, who first halted enforcement of the law and related rules on Monday.

In a new three-page order released Wednesday, Neff rejected Secretary of State Ruth Johnson’s emergency request to “stay” her injunction pending appeal.

The judge wrote that she disagreed with Johnson and Attorney General Bill Schuette’s suggestion that a last-minute change to familiar voting procedures would create “chaos” and confusion at local polling places around the state.

“The administrative tasks necessary for (Johnson) to accommodate the First Amendment rights of Michigan voters do not, in this court’s opinion, warrant a stay of the preliminary injunction in this case,” Neff wrote.

Johnson filed a notice of appeal to the U.S. 6th Circuit Court of Appeals on Monday, the same day Neff’s original ruling came down. It’s not immediately clear how fast the higher court could act.

“As with any lawsuit that may affect our elections, we want this matter to be resolved expeditiously,” said Secretary of State spokesman Fred Woodhams.

“If the order stands, we will need to develop new policies and procedures about when photography is allowed in a polling place and when it’s not, and then communicate those new policies to 30,000 election workers in addition to the millions of voters heading to the polls. This is late in the process to make these changes.”

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.

Joel Crookston of Portage sued the state over the ballot selfie ban in September, admitting he had posted a picture of his ballot on Facebook in 2012 without knowing it was illegal.

While Michigan has not actively prosecuted anyone for taking ballot selfies, Crookston argued the potential for misdemeanor charges had a chilling effect on his free speech rights.

But the state believes the law against ballot exposure “ensures that Michigan residents may cast a ballot free of outside influence,” said Woodhams. “The law has been in effect for more than 125 years and has been effective in preventing vote buying and voter coercion.”

Crookston’s attorney Steven Klein, in a Tuesday court filing, disputed Johnson’s suggestion that implementing unfamiliar ballot selfie rules could “jeopardize the integrity” of the upcoming election, arguing she could quickly update poll workers via cellphone, email, video conferencing or other forms of modern technology.

He suggested poll workers provide voters with the following instructions: “You may, if you would like, photograph your own marked ballot within the voting station before placing it in the secrecy sleeve. However, you may not display your marked ballot in a way that would reveal it to someone else here in the polling place or otherwise take pictures.”

joosting@detroitnews.com