As millions of Americans voted Tuesday night, many talked about it on social media using the #IVoted hashtag, frequently with photos. At times, these voting selfies included images of the ballot — which seems like a natural way to brag.
Ballot selfies are illegal, for no very good reason
The only problem is that, according to the Digital Media Law Project, this is illegal in most states. Laws prohibiting recordings of any kind inside a polling place are somewhat common, and specific directives against photographing one’s own marked ballot even more so.
The rationale is that this is supposed to prevent illegal vote buying.
After all, the theory goes, if you’re going to pay me $50 to cast a vote for your favorite candidate, then you’re going to want some proof that I actually did it. A photo of a marked ballot would be ideal proof. Ban photos, and you make proof impossible. With proof impossible, there will be no vote-selling. And with no vote selling, political equality will reign supreme, even as disparities in wealth and income exist elsewhere in society.
But is it constitutional to prevent people from communicating information about their own voting behavior? The American Civil Liberties Union says no and is suing New Hampshire to try to free the ballot selfie.
Since a would-be vote-seller could sit down with a vote-buyer and an absentee ballot in most states, it seems exceptionally unlikely that legalization would spur a massive wave of fraud. And it’s hardly as if the wealthy are currently lacking means to exercise disproportionate influence over the political process.
The current Supreme Court’s free speech jurisprudence has unleashed plenty of money in politics and held that essentially all efforts to restrain the rich from turning money into campaign spending violate the constitution. Under the circumstances, letting everyday folks have a little free speech with their smartphones seems like a no brainer.
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