Benson eyes settlement in 'ballot selfie' lawsuit

Jonathan Oosting
The Detroit News
FILE - Secretary of State candidate Jocelyn Benson, left, speaks at the Michigan Democratic convention at Cobo Center in Detroit on April 15, 2018. Behind her is former U.S. Sen. Carl Levin, right.

Lansing — Democratic Secretary of State Jocelyn Benson is taking a fresh look at a federal “ballot selfie” lawsuit that seeks to overturn Michigan’s blanket ban on election day polling place photography.

Republican former Secretary of State Ruth Johnson had sought to dismiss the case and defended the longstanding ban, arguing it was designed to prevent vote buying and coercion. But Benson and plaintiffs this month asked the court to delay further action in the 2016 lawsuit until early April.

“The intent of the parties is to engage in talks to determine whether a settlement or partial settlement is possible in this case,” Attorney General Dana Nessel’s office said in a filing.

U.S. District Court Judge Janet Neff granted the request, pausing the case until April 12. In the event the parties reach a settlement or partial settlement, they “shall immediately file a notice indicating such,” Neff wrote in a recent order.

Many other states already allow ballot selfies, which can help increase voter engagement in the process, Benson said Friday. But she told reporters she is cognizant of privacy concerns and worries that allowing voters to take ballot selfies could increase polling place wait times.

“I’ll be making a decision on what’s going to make it easier to vote, harder to cheat and engage all of our citizens around the state,” Benson said during a taping of "Off The Record — Overtime" on WKAR-TV.

Joel Crookston of Portage takes a selfie during a Dec. 12, 2018 Michigan House Elections Committee meeting. Crookston is the plaintiff in a federal lawsuit challenging Michigan's ban on "ballot selfies."

Current Michigan rules generally prohibit 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 but are rarely prosecuted.

Separate from the federal lawsuit, some Michigan lawmakers have proposed lifting the state’s ballot selfie ban, arguing it is a form of free speech protected by the First Amendment to the U.S. Constitution.

A measure that would legalize ballot selfies was unanimously approved by the House Elections Committee in December but did not see a floor vote before the two-year term ended that month.

“Quite frankly, it’s an outdated law, and it needs to be changed,” said Rep. Steven Johnson, R-Wayland, who last week reintroduced his bill to lift the ballot selfie ban.  “I believe it is quite clearly unconstitutional.”

Rep. Johnson was not aware of settlement talks in the federal lawsuit but said he thinks Benson has the authority to lift the ballot selfie ban by changing Secretary of State rules.

His bipartisan legislation, introduced with 25 co-sponsors, would allow voters to take pictures of themselves or their ballots. It would not authorize other forms of polling place photography.

Despite momentum in the House, Johnson said the proposal could face a “hard path” should it reach the Senate.

“But with the direction that the new secretary of state is taking, and as technology changes with more and more people using social media for political advocacy, hopefully the members of the Legislature are starting to turn around and see the value in this,” he said.