A bill legalizing the “ballot selfie” is set to be resubmitted to the Michigan House of Representatives after the bill died on the floor at the end of 2018. The change in law is due in part to a 2016 lawsuit filed by two Hillsdale alumni to protest election laws prohibiting taking pictures of marked ballots.
The lawsuit has currently reached “summary judgment” and could soon be going to oral arguments, according to Steve Klein ’05, the attorney for the case. The case was filed on behalf of Joel Crookston ’06, who posted pictures of a marked ballot in 2012. Filing the case started a preemptive fight against prohibition of First Amendment rights.
If passed, the bill would allow voters to take photos of their marked ballot in the polling place, as well as of their absentee ballot.
“I would argue you have a First Amendment right to share to the world how you voted,” said Rep. Steven Johnson (R‑Wayland), a sponsor of the bill.
But the issue is slightly more complicated than that. Assistant Professor of Politics Adam Carrington said the law doesn’t technically break the First Amendment, since the ban applies to all ballots, regardless of the party. The government must still provide evidence that there is a reason for restricting speech, though, Carrington said.
“Public voting can be and historically has been subject to intimidation, bribery, recrimination, and other problems. Such voting doesn’t truly do what voting is supposed to do: express the consent of the governed,” Carrington said in an email. “What Michigan or other states would have to prove constitutionally in court is that selfie votes would undermine this principle. Given that doing so would be voluntary, it could be a hard sell to courts that right now lean hard toward claims to free speech.”
The bill was originally submitted in March 2017 and made it past committee in late 2018, but it was not able to make it to the governor’s desk.
The law would replace current elections laws and regulations, which prohibit the exposure of marked ballots. Someone caught taking a photo of a marked ballot could be at risk of having their vote forfeited.
Klein said this is not only a violation of the First Amendment, but also of due process. But a change in rules could come sooner, at the discretion of the newly-appointed Michigan Secretary of State Jocelyn Benson. A change in rules without a legislative change could do the same thing, at which point Klein said he would be open to settling, he said.
“We supported the law. It had strong bipartisan support,” Klein said. “It would put the Secretary in the position of having to change the rules.”
Johnson said that with the support of the new Secretary, the bill could be passed within two years.
“This is clearly unconstitutional,” Johnson said. “It is our job as elected officials to make sure laws don’t take away our rights.”