What do Kim Kardashian, Sean Hannity, Laverne Cox, Lena Dunham, and Beyoncé all have in common? Aside from the fact that they are all famous, each of them has posted a picture of a voting ballot in some form to social media (the 2016 phrase to describe this is taking “ballot selfies.”) But is this practice legal? Is it legal in some circumstances, but not others? What if the vote is not visible in the picture? What if the picture is never shared?
Under Ohio Revised Code § 3599.20 it is a fifth-degree felony for a person to allow another person to see his or her ballot, if that person’s intent is showing off how he or she is going to vote. This statute has not received much analysis in either federal or state courts, and so it is unclear whether it applies to pictures of completed ballots posted to social media after a person’s vote is already cast, or whether it only applies to people at the time they are about to vote.
Ohio law does not technically prohibit a voter from taking photographs of ballots (whether at the polls or absentee), or from use of cameras within polling places (though election officials could potentially ban cameras and video equipment in the process of enforcing “peace and good order” under R.C. § 3501.33). So, a person may snap a selfie with his or her vote for Roseanne Barr, and treasure that photograph forever, so long as he or she does not show the photograph to anyone else. The disclosure of the photograph to other people, whether at a family picnic or over social media, is the conduct that constitutes a felony under Ohio law. Also, no violation occurs if the choice is not visible within the photograph, no matter who views the photograph.
Ohio is not alone in banning conduct relating to images of completed ballots. However, the First Circuit recently held that this type of government prohibition violates the First Amendment. In Rideout v. Gardner, decided by the First Circuit on September 28, 2016, the court considered a New Hampshire law very similar to R.C. § 3599.20 (except the law made it clear that it applied to both future votes and votes already cast). All three plaintiffs had posted pictures of ballots to social media to make some kind of statement about either the law itself or the candidates involved in the election.
The court found the law to be content neutral, and thus applied a level of intermediate scrutiny, which requires laws to be “narrowly tailored to serve a significant government interest.” The purpose of the law was to prevent people from selling their votes. The court was skeptical that vote selling is an issue in this day and age, but even accepting the possibility that it may be an issue of significant government interest, the law was not narrowly tailored enough to serve this interest. As political speech is afforded great protection under the First Amendment, the New Hampshire law was held unconstitutional.
While Rideout is not binding on Ohio and posting a picture of a ballot reflecting how one intends to vote is still illegal in this state, it is perhaps a sign of what is to come. Indiana Civil Liberties Union Foundation, Inc. v. Indiana Secretary of State is currently pending in the Southern District of Indiana, and questions the constitutionality of a similar Indiana law. As the popularity of photo-sharing services like Instagram, Snapchat, Facebook, and Twitter continue to soar, we will likely continue to see challenges to these laws.
For example, H.B. No. 609 was introduced in the Ohio House of Representatives on October 25, 2016 to change R.C. 3599.20 to allow the act of taking a photograph of a vote for personal use, “including making the photograph available electronically to the public.”