Appeals court reinstates ballot selfie ban

Chad Livengood
Detroit News Lansing Bureau

Lansing — A federal appeals court has reinstated Michigan’s ban on voters taking photographs of their ballots at polling precincts on Election Day.

The 6th Circuit Court of Appeals on Friday granted a stay of a lower court’s ruling that temporarily lifted the ban on so-called “ballot selfies.”

In a 2-1 ruling, the appeals court halted U.S. District Judge Janet Neff’s injunction issued four days ago in favor of Joel Crookston of Portage, who sued the state in September to get a 125-year-old state law banning photography at the ballot box tossed.

Court of Appeals Judges Ralph B. Guy Jr. and Jeffrey S. Sutton said they wouldn’t “accept (Crookston’s) invitation to suddenly alter Michigan’s venerable voting protocols” with just 10 days before Election Day and 32 days after Crookston filed his lawsuit.

The appellate judges criticized Crookston for waiting so long to file a lawsuit after taking a picture of his 2012 general election ballot and posting it on social media.

“A manufactured emergency does not warrant emergency relief,” Sutton wrote in the majority opinion.

Michigan Secretary of State Ruth Johnson and Attorney General Bill Schuette had quickly challenged Neff’s injunction, contending the sudden change in voting procedures could disrupt the Nov. 8 presidential election.

“Implementing unfamiliar, last-minute replacement procedures would jeopardize the integrity of the election,” Schuette said in a court ruling.

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.

Chief Judge R. Guy Cole Jr. dissented in the decision, arguing “this likely unconstitutional law will deprive citizens of Michigan of their right to vote in this election if they exercise their First Amendment right to take a ballot selfie.”

“In permitting the loss of such a fundamental right, the majority puts the administrative interests of the state above the individual rights of the citizens of Michigan,” Cole wrote in the dissent.

The judges in the majority agreed with state officials that allowing voters to suddenly take photos of their secret ballots could create confusion for the 30,000 poll workers who follow a prescribed set of laws and rules in administering elections.

“Changing the policy now is a recipe for election-day confusion for voters and poll workers alike,” the appellate judges wrote.

Cole said Johnson “had not provided evidence” that the ban on cellphone camera photography at the ballot box prevents the kind of 19th Century vote-buying and voter coercion the law was originally designed to stop.

“The Secretary provides no evidence that any of these interests actually present a problem in Michigan at the moment,” Cole wrote.

Attorney Steve Klein of the Pillar of Law Institute in Washington, D.C., is representing Crookston in the lawsuit and called Neff’s ruling in his client favor earlier this week “a really great victory for free speech.”

On Friday, Klein struck a different tone.

“I congratulate the Attorney General and Secretary of State for their successful effort to uphold censorship,” Klein wrote in an email.

In his concurring opinion, Guy questioned whether voters taking photos with their ballots would create an additional delay at the polls on Nov. 8.

“Insofar as injury to the public is concerned, all I can say is that the statute in question has been on the books since 1891 and up until now nobody has ever claimed to be injured by it,” Guy wrote. “The constitution hasn’t changed in that time, but technology has. Whether that change compels the state to turn a voting booth into a photo booth remains to be seen.”

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Twitter: @ChadLivengood

Detroit News Staff Writer Jonathan Oosting contributed.