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6th Cir. Says No to Ballot Selfies for Michigan Voters

By Casey C. Sullivan, Esq. | Last updated on

Want to commemorate your vote for America's first potential Madame President? Feeling like sharing your Trump ballot with your friends on Facebook? Well, think twice before snapping a ballot selfie if you're a voter in Michigan, where a ban on displaying completed ballots has been in place since 1891, long before ballot selfies became a thing.

That ban has survived 125 years so far and will last through this election, after the Sixth Circuit stayed an injunction against the rule until after ballots are cast this Election Day.

Show Your Ballot, Lose Your Ballot

Michigan voter Joel Crookston really wants to snap a photo of himself with his ballot. He wants it so much that he filed suit little over a month ago, seeking a preliminary injunction to stop Michigan from enforcing the law during the current election. Last week, a district court granted his motion, but the Sixth Circuit quickly intervened to issue a stay.

Under Michigan's law, anyone who shows a marked ballot to another, except for a minor child, will have their ballot "rejected for exposure." The Michigan Secretary of State has also forbidden the use of video cameras and cell phone cameras at polling places, making a successful ballot selfie a risky proposition for Michigan's electorate.

"Timing Is Everything"

Crookston had argued that the law was a First Amendment violation, and the Sixth Circuit acknowledged that "Crookston's motion and complaint raise interesting First Amendment issues."

But "timing is everything," the court said, and Crookston's timing was off. The court noted that Crookston snapped and shared a ballot selfie during the 2012 election, but waited until just weeks before voters were primed to go to the polls to file his lawsuit. That delay was the "first and most essential" reason to grant a stay, the court wrote.

"Call it what you will -- laches, the Purcell principle, or common sense -- the idea is that courts will not disrupt imminent elections absent a powerful reason for doing so," Judge Jeffrey Sutton wrote for the two-judge majority. Ballot selfies didn't make that cut.

Chief Judge R. Guy Cole Jr. disagreed. Voters should not be asked to chose "between their freedom of expression and their right to vote," he wrote. "The penalty in Michigan for taking a ballot selfie is the loss of one's right to vote. In permitting the loss of such a fundamental right, the majority puts the administrative interests of the state above the individual rights of the citizens of Michigan."

Michigan, of course, isn't the only state to ban ballot selfies. Some states have laws forbidding photographing ballots; others have legislated against taking pictures in polling places. Just 19 states plus the District of Columbia explicitly allow ballot selfies.

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