Ballot selfies -- fun, but . . . -- Oct. 27, 2016 column

By MARSHA MERCER

You may have heard -- how could you not? -- that pop star Justin Timberlake snapped a ballot selfie while voting in Tennessee on Monday and posted it online.  

“Hey! You! Yeah, You! I just flew from LA to Memphis to #rock the vote!!! No excuses, my good people! There could be early voting in your town too,” Timberlake, 35, wrote to his 37 million Instagram followers. That’s right – 37 million.

Timberlake’s selfie didn’t show how he voted, but He’s with Her. He was host of a fundraiser for Hillary Clinton in August.

He rocked the vote all right. His selfie was seen ‘round the world, because it could have landed him in jail. In Tennessee, it’s against state law to use a mobile device to take photos or videos in a polling place.

Fortunately, the sensible district attorney in Memphis issued a statement saying: “No one in our office is currently investigating this matter nor will we be using our limited resources to do to so.”

In the universe of potential problems at the polling places, ballot selfies are minor irritants, indeed. They’re innocuous and fun, the latest manifestation of the urge to share all on social media, and they encourage people to get out and vote. What could go wrong?

More than you might think.

We didn’t always have a secret ballot and, until the late 1880s and early 1890s, American elections were rife with corruption.

Party bosses and local officials provided ballots with only some candidates’ names, “helped” voters mark their ballots and gave voters a corn kernel or button, proving they voted “right.” The voter could exchange the token later for money.

As states adopted the secret, or Australian ballot, named for where it originated, in the late 19^th century there was less opportunity for vote buying and coercion. You could say how you voted, but no one knew for sure.

To continue ensuring a secret ballot in the 21^st century, some states have passed laws banning ballot selfies.

It’s illegal in 16 states to take pictures of ballots at polling places, legal to do so in 21 states and the District of Columbia, and legally unclear in the rest, the Associated Press reported. The situation in the states is fluid, however.

In Virginia, for example, it was illegal in previous elections to take pictures of one’s ballot but will be OK this time, Virginia Attorney General Mark R. Herring said last month. You can also use your phone to look up information, but not to call someone.

In much of the Deep South, including Alabama and North Carolina, it’s illegal to take pictures of ballots or in polling places. Texas and California are among states where it’s unclear, according to AP.

The American Civil Liberties Union and other free speech advocates have fought state laws prohibiting ballot selfies with some success. A federal appeals court ruled in August that New Hampshire’s ban on ballot selfies unconstitutionally limited the right of free speech.

A federal district court granted a preliminary injunction Oct. 24 against Michigan’s ban on selfies, so voters can snap away Nov. 8. With so many different laws, the issue likely will be decided by the U.S. Supreme Court.

But critics like law professor Rick Hasen of the University of California-Irvine,  author of the Election Law Blog, warn that ballot selfies could bring a return of buying and selling votes and of coercion from employers, unions and others.

While vote-buying cases do pop up from time to time, no corroborating evidence of vote buying or voter coercion from the 20^th or 21^st centuries was presented in the New Hampshire case, the appellate court said.

Quoting from a 1957 U.S. Supreme Court opinion by Justice Felix Frankfurter, the appeals court wrote that prohibiting ballot selfies was like “burn(ing) the house to roast the pig.”

Technology undeniably has changed how we communicate, and we must protect our right to self-expression. But nobody wants to make it easier for someone to intimidate, coerce or buy voters.

It’s dismaying that the ubiquitous selfie might turn back the clock and undermine our shaky confidence in honest elections. Too many people are already trying to do that. 

©2016 Marsha Mercer. All rights reserved.

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