‘Ballot selfies’ are free speech

Joel Crookston

On Nov. 6, 2012, I committed a misdemeanor in a polling place.

A friend’s post on Facebook jokingly asked voters in Michigan to write-in a mutual friend of ours, Michael Glud, for any office, and I obliged. I wrote in Mike’s name, snapped a quick picture with my iPhone, and later posted the photo on Facebook.

The photo is apparently where I went wrong. I didn’t know it at the time, but learned recently that Michigan law prohibits displaying a marked ballot, and that the Secretary of State prohibits citizen photography and most cellphone use in polling places and voting booths.

Together, these laws threaten me with forfeiting my vote in an election, a $500 fine and 90 days in jail.

That’s right — I could go to jail for taking a “ballot selfie.”

I’m not the only citizen who wants to broadcast my vote on social media on Election Day, and not the only one risking jail time.

In New Hampshire, the state’s attorney general threatened a voter with prosecution under a similar state law for snapping a picture of his write-in vote for a recently-deceased pet. Back here in Michigan in the recent primary, I saw numerous voters Tweeting, Instagramming, Facebooking or Snapchatting their ballot selfies, risking the same charges I did in 2012. Some candidates are even re-publishing these posts. For an illegal activity, it’s quite popular.

I did not want to make a federal case out of it, but some powerful people really believe in these laws, including Secretary of State Johnson. She believes if I snap a quick photo of my ballot in the voting booth it will distract or intimidate other voters. Just taking a regular old selfie (a picture of myself) while waiting in line to vote is supposedly dangerous, too, although “credentialed media” are allowed to film me and other voters. Supporters of these laws even believe that allowing ballot selfies will lead to vote-buying schemes.

These arguments don’t add up, and don’t justify censorship. So, I filed a First Amendment lawsuit a few weeks ago. It is now up to the Michigan federal court to decide.

I’m not arguing that there cannot be reasonable rules in voting places. I’m not looking to display my marked ballot or a ballot selfie while actually in a polling place, nor should I or anyone else be allowed to use a camera to distract or intimidate other voters. It is certainly appropriate to prevent photographing someone else’s marked ballot without their permission. If I did any of those things, I should be fined or go to jail.

But even the age-old and overused justification for censorship — “you can’t falsely yell fire in a crowded movie theater” — does not justify prohibiting all speech somewhere simply because someone might go too far. Laws need real justifications and, when they threaten free speech, must be written to narrowly address only those problems.

Ballot selfies are not a problem to be solved, they are a popular new form of political expression. You might think they’re silly, and that’s fine. No one’s asking you to take one.

But those of us who do are not threatening the integrity of Michigan elections, interfering with your right to vote, or laying the groundwork for vote-buying conspiracies. We’re just celebrating our own right to vote, which, especially among millennials like myself, is itself something worth celebrating.

Joel Crookston is a resident of Portage, Michigan.