By: Angela M. Evanowski
On October 24, 2016, famous singer and actor Justin Timberlake found himself in trouble after posting a “ballot selfie” on his two social media accounts, Twitter and Instagram. Timberlake, who is registered to vote in Tennessee, flew from California to his home voting county and posted the selfies in order to encourage millennials and fans to vote. However, to the surprise of Timberlake, the state of Tennessee earlier this year passed a law banning voters from taking photographs or videos during the voting process. Luckily, for this famous former boy-band member, he is not going to face any criminal charges or punishment for posting his ballot selfies.
However, Tennessee is not the only state that bans citizens from taking private photographs or videos when performing their democratic duty of voting. The following other states (as of October 29, 2016) also have laws banning electronic recording of a voter’s ballot, with the penalties varying from fines to possible jail time: Alabama, Alaska, Colorado, Florida, Georgia, Iowa, Maryland, Massachusetts, Mississippi, Nevada, New Mexico, New York, North Carolina, South Carolina, South Dakota, Texas, West Virginia, and Wisconsin. Nine other states also have unclear laws as to whether electronic recording of ballot pictures is illegal or not.
But until the same exact day as Justin Timberlake’s illegal Tennessee ballot selfie, Michigan law also prohibited electronic recording of ballots. However, on October 24, 2016, federal Judge Janet T. Neff of the Western District Court of Michigan ruled the Michigan law prohibiting ballot selfies was a violation of the First Amendment right to free speech.
In her decision, Judge Neff held the Michigan law prohibiting ballot selfies against strict scrutiny. In her opinion, Judge Neff ruled the law failed to be narrowly tailored to Michigan’s interests of the electoral process’s integrity, or in her own words “the interests in the integrity of the electoral process can be secured in a more reasonable manner than the blanket prohibition on citizen photography set forth” in Michigan’s law.
This decision follows another line of cases throughout the states facing the same issue whether ballot selfies are permitted on Election Day or not. In September 2016, the Fifth Circuit Court of Appeals reviewed a similar law that prohibited electronic recording of a voter’s ballot and the lower district court’s decision barring the law. The Fifth Circuit upheld the decision allowing for ballot selfies. New Hampshire’s interest in prohibiting ballot selfies were similar to the state of Michigan’s: protect the integrity of the election process. Also on October 24, a Colorado state senator filed a federal lawsuit to overrule the Colorado law that bans voters from taking photographs of their completed ballots.
But, the fight for the ballot selfie in Michigan is not over. After the Michigan District Court’s decision, Michigan Secretary of State Ruth Johnson, through Michigan’s Attorney General, filed a motion showing the intention to appeal Judge Neff’s decision, and asked for an injunction against implanting the ruling until after Election Day on November 8. The filing states that Judge Neff’s injunction “threatens the integrity and smooth running of the upcoming election.”
But on October 28, the Sixth Circuit Court of Appeals reversed Judge Neff’s decision. In a 2-1 decision, the judges of the Sixth Circuit declared that the District Court’s opinion, made more than 10 days before the November 8 election, did not allow sufficient time to discuss how allowing ballot selfies would affect voting protocols. So—for now—Michigan citizens will have to hold off from taking a selfie in the voting booth.