The Michigan House of Rep­re­sen­ta­tives is recon­sid­ering leg­is­lation con­cerning “ballot selfies.”

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.”