Despite successfully overturning Michigan’s longstanding “ballot selfie” ban Oct. 24, a federal appeals court rejected Hillsdale alumni Joel Crookston and Stephen Klein’s victory Friday, making it again illegal to take a picture of one’s ballot.
“By filing their motion to stay off the ruling in our case, Secretary of State Ruth Johnson and Attorney General Bill Schuette put their administrative convenience over free speech,” Klein said. “They haven’t respected this challenge from the beginning. People shouldn’t be deprived of their right to vote because of their right to free speech.”
A federal judge granted Crookston ’06 and Klein ’05 a preliminary injunction Oct. 24, successfully subduing the punishment of 90 days in jail, a $500 fine, and the forfeit of one’s vote for taking a picture of a marked ballot. But Michigan Secretary of State Ruth Johnson and Attorney General Bill Schuette filed an emergency motion to delay the injunction, citing that it would be a logistical nightmare with less than a week until election day. The 6th District Court of Appeals moved in favor of Johnson and Schutte’s case in a 2-1 decision.
In the dissenting opinion regarding Secretary Johnson’s motion to keep the “ballot selfie ban,” Chief Judge Guy Cole said he strongly disagreed with the majority’s decision to keep the hefty punishment because of the alleged problems removing the ban would cause at polling places across the state.
“While the election is fast approaching, the administrative changes required by the preliminary injunction are not so onerous that they rise to the level of irreparable harm,” Cole said. “The secretary, however, is only required to convey to election officials that they will not be voiding ballots when voters take ballot selfies. It does not require a new set of procedures; rather, it only requires communication to the various polling officers and polling sites.”
Klein — an attorney for the Pillar of Law Institute in Washington, D.C. — represented Crookston after Klein discovered a photo that Crookston had posted of his ballot on Facebook in 2012. They teamed up in September to file a lawsuit against existing state laws and orders from Secretary Johnson, stating that the “ballot selfie ban” was an obvious violation of free speech.
Judges Ralph Guy Jr. and Jeffrey Sutton, however, disagreed. They said in their opinions Friday that the timing of Crookston and Klein’s case is problematic and that their attempt to repeal a more than 125-year-old law just days before a presidential election would be disastrous.
“Thirty-two days ago, Joel Crookston sought a preliminary injunction to prevent the state from enforcing the Michigan law…so that he could take a ‘ballot selfie’ with his cell phone and post it on social media,” Sutton said. “Timing is everything. Crookston’s motion and complaint raise interesting First Amendment issues, and he will have an opportunity to litigate them in full — after this election.”
Klein said he is frustrated that the court questioned the timing of the lawsuit. He, however, said he is glad Sutton acknowledged the “ballot selfie ban” as an infringement of free speech.
“The merits of this case are still standing, according to Judge Sutton’s opinion,” Klein said. “We are simply asking them to not take people’s votes away.”
While dissenters, such as Secretary Johnson and Attorney General Schuette, said taking a ballot selfie compromises the integrity of one’s vote and has the potential of influencing incoming voters in the polling place, Klein said he disagrees. He said sharing your vote on social media is an extension of free speech.
But district court judges, who ruled against Crookston and Klein, argued against the timing of their case and said they were concerned with how “ballot selfies” would affect the organization and wait times at polling places.
Judge Guy said a voter who wants to take a picture of his ballot could potentially add to the chaos by fumbling with a selfie stick or asking another voter to take a picture.
“If one wants to take a picture of himself or herself taking a selfie which picture also includes the ballot in the photo, it is not an easy task,” Guy said. “With digital photography, if you don’t like the way you look in the first one, you take another and so on ad infinitum. Does the allowance of taking a selfie also include use of the ubiquitous selfie stick?”
Klein said Guy’s point was irrelevant. Crookston’s case wouldn’t influence incoming voters, Klein said, and he specified that voters should have the right to take a picture of their marked ballot securely in the voting booth, without disturbing others, to post on social media.
“I don’t know if he was trying to be ironic,” Klein said. “That wasn’t actually the issue we were fighting for in the case. Using a selfie stick wasn’t even part of the injunction because it would mean that one would have to expose their ballot to people at the polling place. We made that clear.”
Crookston and Klein filed for an emergency hearing in an attempt to overturn and re-evaluate Johnson’s motion, but Klein said it is unlikely it will be looked at before Nov. 8. Klein, however, said he will not stop pursuing the case and hopes to have the ban overturned in the near future.
“I’m frustrated that this is going to limit people’s free speech through this Tuesday’s election,” Klein said. “But we’re going to keep fighting for this in Michigan, we’re not going away.”
