ACLU Challenges California's "Ballot Selfies" Ban

Reese Witherspoon Election Still  - H 2016

Celebrities and other citizens of California could be tempted to follow Justin Timberlake's lead and take a photo of themselves in the voting booth on Election Day as an expression of support for their favored candidate. If so, the American Civil Liberties Union hopes to erase any doubt of the legality of taking "ballot selfies."

On Monday, the ACLU filed a lawsuit in California federal court seeking declaratory and injunctive relief against Alex Padilla, California's Secretary of State. The rights group is challenging a pair of California statutes (see 14276 and 14291 here) prohibiting people from showing the content of their ballots to others. The statutes arguably make it illegal to photograph marked ballots, and the ACLU contends this is a violation of the First Amendment.

Despite the enormous attention paid to whether or not Timberlake violated Tennessee law with his own ballot selfie, courts around the nation, including in Michigan, Indiana and New Hampshire, have blocked enforcement of such laws on constitutional grounds. Advocates of laws against "ballot selfies" argue they are needed to ensure that voters can't be coerced into voting a certain way, but as one federal appeals court noted, there's little support for such fears.

"Digital photography, the internet, and social media are not unknown quantities — they have been ubiquitous for several election cycles, without being shown to have the effect of furthering vote buying or voter intimidation," stated an opinion from the 1st Circuit on Sept. 28.

The ACLU is now seeking to stop enforcement of California laws that even lawmakers no longer think necessary.

According to the ACLU's complaint, "The California legislature has already repealed the laws that Plaintiffs challenge, illustrating the lack of government interest in their enforcement. But because of the timing of this repeal, the laws continue in effect until January 1, 2017."

A hearing is scheduled for Nov. 2 in San Francisco before U.S. District Court judge William Alsup to consider the ACLU's demand for an injunction that would prevent government officials from interfering with voters' taking and distributing images of their marked ballots.