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Ballot Battles Over ... Selfies?

By Vaidehi Mehta, Esq. | Last updated on

If you live in North Carolina and are involved in politics, you may have heard of Susan Hogarth. She previously served as the chair of North Carolina’s Libertarian Party. And even if you aren’t familiar with her, you may see her name if you go to vote in the Tar Heel State next month; she’s running for election to the North Carolina State Senate to represent District 13.

On brand for District 13, Hogarth doesn’t like the way the central government is running things. She decided to stick it to the man by flouting a state law that prohibits taking photographs of ballots in elections. When she was given a slap on the wrist, she decided to take it further by filing a lawsuit against the state.

But First, Let Me Take a Selfie

It all started this past March, when Hogarth went to the local elementary school in Raleigh that had been assigned as her polling place in to vote in the North Carolina primary election. Upon entering the voting enclosure, Hogarth received a paper ballot and proceeded to a voting booth, which was a section of a table separated from other voters by a privacy screen.

After marking her votes for president and governor, Hogarth used her cell phone camera to take a photograph of herself holding up her completed ballot. The entire process took approximately 45 seconds.

Importantly, the photograph of her ballot showed the viewer who she voted for. That, as it turned out, was no accident. To add some drama to the entire ordeal, the photograph also captured a sign in the voting booth that prohibited photography. That was no accident of comedic irony, either; Hogarth was making a statement.

After submitting her ballot and leaving the polling place, Hogarth shared her ballot selfie on X (Twitter). In her post, she wrote: “(1) Laws against #ballotselfie are bullshit. (2) I guess this is my endorsement for @ChaseForLiberty and @FireTheUniparty,” identifying the candidates she voted for by their usernames on X. This post was viewed 2,896 times, liked by 87 users, and either reposted or quoted by 23 users.

Election Board Sends Warning

In giving a symbolic, if very overt, middle finger to the legislature behind the photography law, Hogarth was clearly not trying to keep her violation under wraps. It should not surprise you, then, that the people in charge soon found out. The North Carolina State Board of Elections Investigations Unit was soon notified of a possible violation of the state statute that prohibited photography in voting booths.

Two weeks later, Hogarth received a letter from one of the State Board investigators. It wasn’t a particularly hostile letter. The investigator said that she wished to explain the law to Hogarth and inform her that her posted photo violated the law. The letter requested Hogarth to take the post down. It did explain that what Hogarth did is punishable as a Class1 Misdemeanor, but it was clearly giving Hogarth a chance to remedy her action rather than saying she would be immediately prosecuted.

Lawsuit Launched

But Hogarth was never a fan of that law to begin with. Perhaps she saw the letter as an opportunity to take her initial stance on the photography law one step further. Not only did she refuse to take her post down, but she decided to give the State Board a piece of her mind by filing a lawsuit against them for the letter trying to enforce that law.

In her complaint, filed at the end of August in federal court, the primary legal argument that Hogarth presents is that North Carolina’s ban on ballot selfies violates voters’ First Amendment rights. Hogarth argues that the ban on ballot selfies infringes on her right to free speech. She contends that taking and sharing a photo of her ballot is a form of political expression, which is protected under the First Amendment.

Her attorney asked for an injunction that would protect all voters from prosecution while the case proceeds, but the federal district judge declined to issue it. However, the judge did direct attorneys to draft an agreement to prevent Hogarth from being prosecuted during the ongoing litigation. Hogarth's local district attorney had already submitted an affidavit stating that she would not prosecute Hogarth until the constitutionality of the state statutes is decided.

Since the lawsuit is still nascent, we don’t know the detailed legal arguments that Hogarth’s attorney is prepared to make. But so far, in a public statement, he has emphasized that at the core of political speech is the ability to communicate one's actions and choices in the democratic process. By taking a selfie with her ballot and sharing it, he says, Hogarth is expressing her political preferences and encouraging others to participate in the electoral process.

Hogarth’s argument may also include the point that allowing ballot selfies does not necessarily lead to vote-buying schemes or other forms of election fraud, as feared by the state. Hogarth’s case could argue that the ban is overly broad and not narrowly tailored to address the specific issue of voter fraud.

We could also see the lawsuit arguing that there are less restrictive means to prevent vote-buying and ensure election integrity without infringing on free speech rights. For example, the state could implement other measures to safeguard against fraud that do not involve banning ballot selfies.

Ballot Laws Questioned

The lawsuit may draw on precedents from other states where similar bans have been struck down. For instance, New Hampshire's ban on ballot selfies was overturned by two courts on the grounds that it was unconstitutional. California and Colorado have also reversed their bans and now allow ballot selfies.

North Carolina is one of 14 states that prohibit voters from taking photos of their completed ballots. These types of measures are purportedly aimed at preventing vote buying, voter intimidation, and disruptions at polling places. Hogarth’s attorney pointed out that the state has not provided recent evidence of vote buying to justify the restrictions. He noted that the State Board has reported only two cases of ballot photography in the last five years and no cases of vote buying.

The restrictions extend to absentee ballots, meaning voters cannot take a picture of their filled-out ballot even if voting from home. Voters are also required to obtain permission from the chief judge of the precinct to take photos of themselves or other voters in the polling place.

What It Means for North Carolinians

Despite the legal challenges, Hogarth has said that she plans to continue taking and posting ballot selfies in future elections. She believes that voters should have the right to share their voting experience without fear of punishment, stating, "In a free society, you should be able to show the world how you voted without fear of punishment."

As the case proceeds, North Carolina voters will remain prohibited from taking ballot selfies in the upcoming general election. So, the upshot for any Carolinian shutterbugs out there is maybe don’t try to take a pictures at the voting booth unless you are prepared to deal with the consequences.

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