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Self-expression, selfies, and secret Ballots

Oct 31, 2016

Last week we saw two contradictory federal court rulings on Michigan’s law outlawing taking selfies of your ballot in the voting booth. For now, it is still illegal. 

Michigan Radio Senior News Analyst Jack Lessenberry is trying to sort this out.

Here's what he said:

Yes, this indeed has been the weirdest presidential election of our lives, even counting the year Ross Perot charged that President George Bush the first’s reelection campaign was scheming to destroy his daughter’s wedding by spreading the rumor that she was a lesbian.

I don’t know what was stranger – Perot’s saying that, or the fact that nearly 20 million people voted for him anyway. But the latest twist in this year’s oddness is relatively non-partisan.

The question is, should you be allowed to take a selfie photograph of your ballot in the voting booth?

For millennials especially, this has become an “express yourself flamboyantly” world.

Four years ago, a man named Joel Crookston of Portage took a selfie of his ballot, only to find out that had been outlawed by the Michigan legislature, and he could be facing 90 days in jail or a $500 fine.

He thought that violated his free speech rights. So he sued in federal court, and at first he won. U.S. District Judge Janet Neff, who sits in Grand Rapids, ruled a week ago today that to outlaw selfies is to violate their right of free speech.

However, four days later, she was overruled by a three-judge panel from the Sixth U.S. District Court of Appeals, which, on a 2-1 vote reinstated the selfie ban. 

There’s a temptation to assume that conservatives are in favor of banning voting booth selfies; liberals opposed.

But this isn't all that simple. What if voting, especially in inner-city areas where there never seem to be quite enough stations, is slowed up by people taking pictures of themselves with their ballots?  

Judge Ralph Guy, one of the two in favor of sustaining Michigan’s ban on voting booth selfies, noted that history has shown that many voters cannot and will not wait a long time to vote, especially if it is raining.

What if someone is suspected of trying to peer at somebody else’s ballot in the carrel next to them with a smartphone or other device on a selfie stick?

Most worrisome to me would be an employer who let his or her workers know that if they valued their jobs, they better show a selfie of themselves voting for Jones.

This could make the whole concept of a secret ballot meaningless. Now, I am not completely sure voting booth selfies should be banned.

Two federal judges have said this law violates the First Amendment right to free expression.

Another federal appellate court, the First, has ruled that a ban on selfies in New Hampshire was unconstitutional.

Indications are that this may ultimately be decided by the United States Supreme Court.

However as far as Michigan is concerned, Judge Jeffrey Sutton, the other appellate vote against allowing this now, sensibly said that trying to decide this barely a week before the election doesn’t make sense.

Sutton said Joel Crookston’s “motion and complaint raise interesting First Amendment issues, and he will have an opportunity to litigate them in full, after this election.”

For now, Crookston will have to be content with posting how he voted on every form of social media, and renting a billboard if he desires.

If that seems like a brutal suppression of his right to self-expression, well, I guess I’m missing something.

Jack Lessenberry is Michigan Radio's political analyst. Views expressed in his essays are his own and do not necessarily reflect those of Michigan Radio, its management or the station licensee, The University of Michigan.