After months of debate, the California legislature finally reversed a decades-old law that prohibited Californians’ constitutionally protected right to the ballot selfie. That is, the right to post online a photo of yourself alongside your completed ballot, marked for the candidates and ballot measures of your choice.
The potential for voter expression via ballot selfies should not be understated. Imagine the message you would send by taking and sharing a picture with your ballot marked for Hillary Clinton, Donald Trump or even, perhaps, a “no vote” for president. Credit California’s legislature — and in particular North Bay Assemblymember Marc Levine, who introduced and championed the bill — for rightly recognizing that the First Amendment is a shield for citizens, and that the state cannot punish voters for exercising their right to post pictures of themselves with their marked ballots.
The bill’s final version repeals a 1994 California law that, although never enforced because of its unconstitutionality, made ballot selfies actual felonies. The new bill then adds language to the California Elections Code that effectively notes that ballot selfies are indeed legal. The legislation’s supporters understand that ballot selfies implicate a core First Amendment right — specifically, the right to political free speech — and wisely acknowledged that the government can neither grant nor deny this right because it belongs solely and unequivocally to each individual citizen.
Californians do not need the government’s permission to take and share pictures of themselves with their own ballots. The core constitutional issue is the absolute nature of the individuals’ political free speech right to express themselves with their ballot — whether by filling it out, ignoring it or posting a picture of it. The choice to exercise the right belongs, as it always has, not to the government, but to the people.
By passing this bill, California’s legislature astutely recognized the unconstitutionality of its previous ballot selfie ban. In fact, the law’s genesis was two federal district court cases last year — one in New Hampshire and another in Indiana — brought by the ACLU in which both courts soundly struck down state election laws that explicitly banned the ballot selfie, not unlike California’s now-former ban. Indeed, the federal judge in Indiana reasoned that the deprivation of the First Amendment right to post a picture of yourself with your ballot constituted “presumptively irreparable harm” to all citizens’ right to freedom of political expression.
Some decried the courts’ decisions as damaging to the democratic system, worrying that ballot selfies would be used as “proof of vote” in vote-buying or voter-coercion schemes. This misgiving lacks compelling evidence that ballot selfies have ever been used in any type of illegal scheme and runs contrary to the general consensus that in-person voter fraud is extremely uncommon. Cameras, and more recently cellphone cameras, have been around for decades, yet there is no evidence that these technologies have been used to abuse the voting process. Even further, each state has its own set of laws that effectively police voter fraud without undermining political expression.
Something is badly amiss if ballot selfies threaten self-rule, and critics underestimate the chilling effect that laws like these can have on voters’ First Amendment free speech rights.
To be sure, the notion that government can restrict the right to the ballot selfie is equally as anathema to the First Amendment as the notion that government can grant it to its citizens. The ability to deny the right and to grant the right are two sides of the same coin: The government does not own its citizens’ political free speech rights and, therefore, can neither deny nor grant those rights in the first place.
California’s legislature has finally reversed an unconstitutional law and acknowledged that Californians’ political free speech rights do not derive from government. The right to free political expression, even by posting ballot selfies, exists regardless of government action, and citizens have the unassailable choice to exercise this right free from government objection and according to their conscience alone. California’s new ballot selfie law simply — and finally — memorializes that which already was.
Matthew C. Alvarez is an attorney with the Sutton Law Firm, practicing political and election law.
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