In a time where people share everything on social media, it's not at all surprising that many take photos of themselves voting. Weeks in advance of election day, photos of ballots and people participating in early voting were already littering social media. But it's not actually legal to do this everywhere in the United States.
Whether it's legal in your precinct is complicated, as laws vary across the nation. Laws that prohibit so-called ballot selfies are often the result of older laws targeted at stopping vote buying. "There were old rules, and sensible ones, that make it illegal to buy votes," Dave Heller, deputy director of the Media Law Resource Center, told Thrillist. "One of the ways one could perhaps document is to take a picture of how you voted to prove to someone that you followed their instructions and receive money for it."
In many places, these laws exist in an effort to stop vote buying. However, in some places, laws like these are being repealed, though vote buying is still illegal. That's the case with a September federal appeals court ruling in New Hampshire that's been hailed as a major win for first amendment rights.
"What the court said is it's simply overbroad and unnecessary to have a blanket ban on taking ballot selfies," Heller said. "In fact, they very colorfully used an old expression. They said, that's like burning down the house to roast the pig.
"The court also noticed that it's 2016 and social media has been around for a couple of election cycles. There haven't been any incidents that the court could find where ballot selfies were being used somehow in vote buying or intimidation schemes."
While clarity is coming to some states like New Hampshire, that's far from being the case in all states.
Justin Timberlake highlighted these complications when he took a ballot selfie (since removed) while voting early in Memphis. In this case, it's not even an old law that makes what he did illegal. Tennessee passed a law this year forbidding the use of "a mobile electronic or communication device" for "telephone conversations, recording, or taking photographs or videos while inside the polling place." Though, the law permits the use of phones for "informational purposes to assist the voter in making election decisions."
While that law is new, many weren't written with the digital age in mind and there's sometimes a lack of clarity regarding ballot selfies. NBC reports that Iowa, Montana, Michigan, New York, Nevada, Pennsylvania, South Dakota, Texas, Wisconsin, and 17 other states don't currently allow ballot selfies. A similar map put together by the Associated Press and USA Today says many of those same states, including Montana and Michigan, do allow selfies.
Meanwhile, things are fluid. The New Hampshire ruling came through in September and on Oct. 24 a Colorado state senator filed a federal lawsuit against the state of Colorado for banning ballot selfies. In New York, where ballot selfies remain illegal, the law was challenged recently and upheld. The judge wrote, in a 16-page decision, that changes this close to the election would be "a recipe for delays and a disorderly election"
The penalty where ballot selfies are illegal ranges from a felony (Illinois) to a misdemeanor (Tennessee), so it's worth digging up the laws in your state and precinct. However, it's important to note that a ballot selfie, even if illegal, does not invalidate your vote. But if you're not sure and want to play it safe, it's not illegal to post a selfie outside a polling station sporting an "I voted" sticker. Plus, the fluorescent lighting in polling stations doesn't capture your "I just voted" glow the same way the sun will.
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