Two Hillsdale College alumni have upped the ante in their lawsuit to overturn Michigan’s prohibition of “ballot selfies.”
Plaintiff Joel Crookston ’06 and Steve Klein ’05, his attorney, filed a motion to reply on Monday in their fight to amend a complaint they filed a year ago against Michigan election rules that prohibit people from photographing a marked ballot. The amended complaint would not only argue the ban on ballot photographs — which carries a maximum punishment of 90 days in jail, a $500 fine, and forfeiting one’s ballot — is a violation of free speech, but of voting rights, too.
“Because there’s no trial, there’s no appeal, the punishment can just be dealt by the poll workers, and you have no due process,” Klein told The Collegian.
Klein — an attorney for the Pillar of Law Institute in Washington, D.C. — and Crookston, who works in pharmaceuticals and as a DJ, are seeking to amend the lawsuit after a deposition on July 14 revealed that poll workers have used Michigan’s ballot forfeiture rule to reject ballots from being counted before.
Ottawa County Clerk Justin Roebuck ’06, a former classmate of Crookston and Klein, testified as an expert witness on behalf the state of Michigan on the enforcement of the rules. In the deposition, Roebuck recalled that while he served as Ottawa County’s election coordinator, a “defiant voter” was showing his ballot to others, according to the deposition transcript. After he refused to conceal the ballot, he had to forfeit his vote. The individual was not taking photographs.
“Because Justin laid that out so clearly, that was the first time we finally had a clear understanding of how this law actually works and how this would affect Joel, our client, if he were to do this not just in terms of free speech but voting rights,” Klein said.
Roebuck, however, said he worries a change in rules actually will threaten voters’ rights. Taking photos of other voters at the poll may violate their privacy. People may also use ballot selfies to coerce citizens to vote a certain way with the photograph providing proof. Avoiding such pressure was the original reason for the law, he said.
“I do not see the ballot exposure law as a violation of freedom of speech,” he said. “The act of voting is an expression of freedom speech, but when you begin allowing others to come into a place that has always been sacred, that’s always been private at least since the 1890s when we introduced the secret ballot method in Michigan elections, that’s really a cornerstone of the voting rights act itself.”
He added that voters can take photos outside of the polling location and with their “I Voted” sticker.
Crookston and Klein filed the amendment on Aug. 21. The state of Michigan, however, is arguing the filing was delayed and is now too late.
“By lawyer standards, you could not go any faster,” Klein said, adding he hopes to see the proposal adopted in about two months.
The case began in September 2016, when Crookston and Klein filed their lawsuit against the 125-year-old rule. On Oct. 28, U.S. District Judge Janet Neff approved their request for a preliminary injunction to suspend the ballot selfie ban’s punishment.
The 6th District Court of Appeals, however, on Nov. 3 granted an emergency stay from Michigan Secretary of State Ruth Johnson and Attorney General Bill Schuette to delay the injunction , citing logistical concerns with the implementation of the ruling so close to the Nov. 8 election.
Klein and Crookston then entered into a discovery process to gather more facts for the case, which is atypical of First Amendment cases, Klein said. Normally, a citizen testifying that a law or rule prevents them from speaking freely will suffice.
“We’re in the right,” Crookston said. “They’ve fought tooth and nail and wasted Lord knows how many dollars in fighting this when it seems like it would be much simpler to amend these rules that were made long before 2017 and the existence of smartphones.”
The research revealed the secretary of state leaves the tracking of ballot forfeitures up to county clerks and that the rule is enforced rarely. A social media analysis also showed many people of all different partisanships in Michigan share ballot photographs online either to protest Michigan’s rule or because they are unaware of it.
The proposed amendment also removes the term “ballot selfie.” Klein said although the term is accepted both popularly and in law, he is looking to clarify the claim to mean any photo of a marked ballot, whether it includes a person in it or not.
This is not the first time Klein has taken on ballot photographs. In Colorado, he partnered with Michael Francisco, a 2004 Hillsdale alumnus and attorney and partner at MRDLaw, in a lawsuit against the state’s prohibition of ballot selfies. They won, and after the state appealed, the Colorado state legislature repealed the law.
“It struck me as one of many laws that are on the books but are unconstitutional, but they rarely end up getting challenged,” Francisco said. “The idea that you can chill people from engaging in political speech by threatening them with $1,000 fines and that they would be a criminal for posting a ballot selfie, it seemed like a law that’s begging to be challenged.”
Klein said he is hoping for a similar outcome in Michigan and expects a ruling by mid-2018. The party that loses, however, is likely to appeal, he said.
“This is not a cause of censorship; it’s a cause for celebration,” Klein said. “It speaks to, unfortunately, how easily bureaucrats can censor citizens and how callously they can do it when you have something as simple as this, not just as harmless but quite the contrary, very beneficial to society. They find some reason, any reason, to punish you and shut you up. As goofy as this case may seem at first glance, it’s very important, and I’m certainly looking forward to vindicating Joel’s rights.”