Ballot selfie? Crime of First Amendment right?

I don’t post every single thing I do on social media, but that doesn’t mean it should be illegal.

Since it’s two days before what is likely to be among the most historic presidential elections in history, you might have already guessed this has to do with Tuesday’s election.

The latest fiasco to arise in this crazy election stems from the social media tag #ballotselfie.

Picture this. You wait in a lengthy line at the polls, finally receive your ballot and head to your voting booth. You make your picks and decide you want to capture the moment in this historic election for posterity. Posing with your ballot in one hand and cellphone in the other, it’s selfie time.

And of course there is a hashtag already floating around on social media (#ballotselfie) just begging for you to post it out there for the world to see!

While secrecy has become a thing of the past for many who think it’s perfectly normal to share every detail of their daily lives on social media, laws nationwide are mixed about whether it’s legal for voters do it in the voting booth.

But shouldn’t this be your First Amendment right to freedom of expression?

Laws actually exist that ban sharing any photo of your ballot in 18 states, while six other states bar photography in polling places but do allow photos of mail-in ballots, according to a review by The Associated Press.

Some states want ballot selfies to be banned, saying the photos could harm the integrity of the voting process by encouraging vote-buying or coercion, though some acknowledge there’s no evidence to support those fears.

Poll secrecy is supposed to be sacred, after all.

The latest debate got started after a federal appeals court panel last month ruled a New Hampshire law banning the sharing of so-called ballot selfies on social media was unconstitutional.

Voters and the American Civil Liberties Union challenged the law.

Social media platform “Snapchat” filed a court document supporting ballot selfie rights, arguing that the sharing of digital information, like Snaps and selfies, are the way younger voters participate in the political process and make their voices heard, which is protected by the First Amendment.

But in many states, it’s still a violation that carries potential fines or jail terms.

Here’s what the Ohio Revised Code has to say about it:

“No person shall attempt to induce an elector to show how the elector marked the elector’s ballot at an election; or, being an elector, allow the elector’s ballot to be seen by another … with the apparent intention of letting it be known how the elector is about to vote … Whoever violates this section is guilty of a felony of the fifth degree.”

Now, I’m no attorney, but to me that says don’t show anyone how you marked your ballot. And if you do still feel the need to take a selfie with your ballot, then don’t post it on social media.

Dan Tierney, spokesman for Ohio Attorney General Mike DeWine, told the Plain Dealer the intent of Ohio’s ballot sharing ban, last revised almost 20 years ago, was to prevent voter intimidation. Absent that sort of complaint, Tierney said, “a ballot selfie case might be difficult to prosecute.”

The 1st Circuit Court of Appeals in Boston upheld a decision that New Hampshire’s ban on ballot selfies was unconstitutional, saying it suppressed a large swath of political speech and there was no evidence to support the state’s concerns.

Circuit Court Judge Sandra Lynch quoted a 1957 U.S. Supreme Court decision in an obscenity case, writing that the state’s overly broad ban was like “burning down the house to roast the pig.”

It’s not clear what effect the ruling will have in more than 20 other states with similarly styled prohibitions, or others like Ohio, where the intent of laws that restrict ballot sharing are less than clear.

From where I sit, the bottom line is this. Our First Amendment should to be guarded.

If that means standing up for your right to take a selfie with your ballot, then so be it.

blinert@tribtoday.com

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