A great number of Americans are poised to vote on Tuesday and what better way to commemorate the moment than with a selfie in the voting booth: smiling, marked ballot in hand, exercising one’s democratic freedom.
Uh… hold on a minute.
There are no federal laws regarding the taking of selfies at polling stations. But 18 states, including Alabama, Illinois and Florida, say it is not allowed. And for six others, the rules are ambiguous.
You can’t take a selfie in Texas, where the secretary of state, Rolando Pablos, sent out an advisory last month, telling election officials that voters could be forced to leave if they use their cellphones within 100 feet of a polling station.
Nor can you in Delaware, where Elaine Manlove, the state’s election commissioner, said signs would be posted banning cellphone use even though there is no law addressing it. And remember when Justin Timberlake was taken to task in 2016 for taking a ballot selfie in Tennessee? Good thing he voted early this year. Secretary of State Tre Hargett said photographs and videos at polling places were verboten.
The debate over voting booth selfies began in earnest in 2014 when the American Civil Liberties Union in New Hampshire filed a lawsuit opposing a state law banning the selfies on social media. If violated, voters could have been fined $1,000. The A.C.L.U. argued that the law restricted free speech. New Hampshire election officials claimed it was necessary to deter voter intimidation and vote buying, a century-old practice used to influence elections. (A photograph could be used to show how someone voted.)
In the end, the A.C.L.U. and New Hampshire voters prevailed, joining 25 other states and the District of Columbia where voters can snap away. But not without a warning.
“With the use of technology for posting selfies on social media, it starts to open that door again” to vote buying, said David Scanlan, New Hampshire’s deputy secretary of state. “And courts are going to be wrestling with that.”
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For now, it is mostly up to state and local governments. In Oklahoma, for example, Gov. Mary Fallin vetoed legislation in April that would have allowed voters to take selfies with their ballots. Election officials say the rules are now unclear. California, by contrast, repealed a 125-year-old law in 2016 that barred voters from voluntarily disclosing how they voted. A more selfie-friendly law went into effect there in 2017.
But even critics of stricter rules caution that voters should respect the rights of others who may not want to have their photograph taken. A study published in 2016 by several groups including the Electronic Privacy Information Center, a nonprofit privacy research center in Washington, found that 44 states had a provision in their constitutions that guaranteed secrecy in voting. (The remaining six had a statutory provision.)
In the end, how laws are enforced may depend on turnout and how vigilant poll workers are this year. “If the lines are getting longer because people keep taking pictures of themselves, they will tell them to stop,” said Bobby Hoffman, the advocacy and policy counsel for voting rights at the A.C.L.U. in Washington. And is it likely scores of selfie-takers will find themselves in court? Probably not.
The Democratic nominee for governor in Florida, Andrew Gillum, ran afoul of the state’s no-selfie law when he took a photograph of his ballot during the August primary. “Today I voted for me,” he wrote, filling in the bubble next to his name and posting the photograph on Twitter. Mr. Hoffman laughed when he considered the possible fallout.
“The idea of prosecuting someone for voting for themselves is a bit silly,” he said.
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