Six days before the Nov. 8 election, a federal judge in San Francisco on Wednesday turned down an American Civil Liberties Union bid to block a state law that prohibits voters from posting photos of their completed ballots on social media.
U.S. District Judge William Alsup said the ACLU filed its lawsuit on Monday, too close to the election, and that suspending the law on short notice could cause disruption and confusion at the polls.
“Timing is everything,” Alsup said.
“It’s unfair to the voters of California, to people who run polling places and to the secretary of state to jam this down their throats at the last minute,” the judge told ACLU attorneys.
He denied both a temporary restraining order and a preliminary injunction after an hour-long hearing in his Federal Building courtroom.
The photos of marked ballots are sometimes known as “ballot selfies,” although they don’t necessarily include a picture of the voter.
The state Legislature has rescinded the law and the repeal will go into effect Jan. 1. But the civil liberties group, which claims voters have a First Amendment right to show others how they voted, wanted to have the law suspended immediately.
The current measure has been on the books for more than a century and was intended to protect the secrecy of the ballot and prevent intimidation or vote-buying.
It states, “After the ballot is marked, a voter shall not show it to any person in such a way as to reveal its contents.”
In guidance to county election officials, California secretaries of state have interpreted the law to bar voters from using cameras at polling places.
In updated guidance on Oct. 12, Secretary of State Alex Padilla said the state was standing by that position for the November election, but noted that voters can legally take smartphones into the booths to do research or look at notes.
The new law that takes effect next year allows “a voter to voluntarily disclose how he or she voted if that voluntary act does not violate any other law.”
Padilla, the defendant in the lawsuit, said in a court filing that he supports the new law, but that it would be disruptive to suspend the old one this close to the election.
Deputy California Attorney General Emmanuelle Soichet argued at the hearing that blocking the law would require new guidance, retraining of workers at the state’s 14,101 polling places “on a massive scale” and emergency outreach to voters.
ACLU attorney Michael Risher told Alsup, “We simply want people to have the right to take pictures of their ballots. It’s not going to delay things at all.”
He said voters may want to post ballot selfies to show support for particular candidates or issues or to encourage others to vote.
But Alsup, agreeing with the state attorneys, said there were many “nuanced decisions” about rules for ballot selfies that required thought and could not be made at the last minute.
The issues include whether to allow selfie sticks, whether to allow a voter the time to keep taking photos in hopes of getting the perfect shot, whether to permit a voter to talk while taking a video selfie in a voting booth and whether to allow photos of other voters at the polling place, he said.
“This is a half-baked idea. I don’t think you’ve thought this through,” he told Risher during his argument.
Outside of court, Risher said no decision has been made on whether to appeal.
The ACLU noted in a brief that the secretary of state’s office has no record of anyone being prosecuted for posting a ballot selfie.
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