Ballot Selfies: Where Social Media and Voting Rights Collide

Cartoon man casting his vote and taking selfie with a selfie stick

By Clifton Rogers

It has become increasingly common to take a picture of a ballot and to post it on social media. This is known as a “ballot selfie.” Ballot selfies are popular among those who are enthusiastic about politics and social media. 

According to critics, however, there are good reasons to ban ballot selfies. Opponents of ballot selfies theorize that being able to take pictures of ballots could make voter fraud more widespread. The theory is that because vote buyers need to be able to verify who the person they are paying voted for, a picture of the ballot is the best possible evidence. New Hampshire adopted such a view and passed Election Procedure 659:35 in the summer of 2014. The law punishes, with a $1000 fine, anyone who takes a picture of a ballot in which a selection has been made and shares it on social media. New Hampshire says it is attempting to uphold the sanctity of the secret ballot under the theory that “if a vote can not be proven, it can not be bought.” 

Shortly after the New Hampshire law went into effect, a man snapped a picture of a ballot in which he voted for his deceased dog and then posted it on social media. The man did so because he was angry with the quality of the candidates on the ballot. New Hampshire investigated the man under the new anti-ballot selfie law. The ACLU then filed a case challenging the law on his and two other individual’s behalf. It argued that the law violated the First Amendment’s guarantee of free speech. The ACLU contended that posting a picture of a stamped ballot is an act of free speech, and that the government has no proof that voter fraud of this kind is a serious enough issue to warrant this restriction on citizen expression. It also claimed that the action New Hampshire took in prohibiting ballot selfies was too broad and unfairly burdened innocent voters.

The lawsuit over ballot selfies came before Judge Paul J. Barbadoro of the U.S. District Court for New Hampshire. Judge Barbadoro held that the law violated the First Amendment because New Hampshire did not have a sufficient reason for limiting this political speech.

The First Amendment states that “Congress shall make no law abridging the right of free speech.” The right covers more than mere speech; it includes actions or expression that furthers a belief. Even though the First Amendment seems to create a complete prohibition on governmental regulation, states and the federal government can pass laws restricting free speech under certain limited circumstances. According to the Supreme Court, a state may restrict certain speech if it can justify it with a compelling reason to do so and if it can prove that it has adopted the narrowest possible means to achieve its goal.

For example, in United States v. O’Brien, the Court held that a law that banned the burning of draft cards was constitutional, even though it limited politically-motived speech, because it served a legitimate governmental interest, in this case maintaining an efficient draft system. The law was also narrowly tailored to achieve that interest because it applied only to the destruction of draft cards, not other kinds of expression involving the cards. On the opposite end of the spectrum, in Cohen v. California the Court overturned a man’s conviction for wearing a jacket with an expletive that described the Vietnam War, finding that the First Amendment protected this speech. The Court held that the interests of protecting the peace and general morality were not sufficient to stifle this political expression.

The question for Judge Barbadoro, then, in analyzing New Hampshire’s ballot selfie law was whether the prohibition was more like the ban on burning the draft card or the jacket with an expletive.  Put differently, did the state have a sufficient reason in limiting vote buying to ban ballot selfies?

The Judge stated that while preventing voter fraud is an important goal and is worthy of state action, the scant evidence of actual vote buying did not support this law. The ACLU had pointed out that there had not been a single instance of voter fraud in the state which involved taking a picture of a ballot. According to Judge Barbadoro, even assuming there was a problem of voter fraud, the law at issue was not properly tailored to fix that problem. Judge Barbadoro reasoned that a person intent on vote buying is unlikely to broadcast his or her intentions on social media; therefore, the only victims of the law are those who innocently wish to make a political point. The court therefore struck down the ballot selfie law as violating the First Amendment.  New Hampshire plans to appeal the district court’s ruling. 

Indiana passed a similar ban in August of 2015. Plaintiffs immediately challenged it, and Judge Sarah Barker issued a preliminary injunction against the state enforcing the law. Interestingly, Judge Barker also wrote the district court opinion upholding Indiana’s voter ID law back in 2006, another Indiana law designed to combat voter fraud. That case eventually wound up at the U.S. Supreme Court, where the Court found that the law did not violate the Constitution. In the voter ID context, Judge Barker upheld a law passed to combat in-person impersonation even though the state had no evidence that there was any actual voter fraud of this kind. Yet in the ballot selfie case, Judge Barker ruled against the law because the state had no evidence of voter fraud involving pictures of ballots. The difference seems to be that the court analyzed the voter ID law under election law cases that are more deferential to the state, while the court analyzed the ballot selfie ban under the First Amendment, which provides less deference to government restrictions on speech. 

The Supreme Court has not yet weighed in on ballot selfies.  For now, however, two courts have invalidated bans on ballot selfies as violating the First Amendment. While some states have been moving in the direction of banning ballot selfies, others are moving in the opposite direction. Arizona has passed a law specifically allowing a person to post a picture of a ballot. Arizona officials emphasized that the state is interested in upholding an individual’s right to free speech and that it recognized the New Hampshire and Indiana laws as unconstitutional. Utah adopted a similar measure. A person who is interested in testing the legal waters could snap a picture of his or her ballot and post it on social media. It is unclear what the result may be. Many states have not yet adopted specific bans or allowances and many state laws remain vague on this issue. 

People fought and died so you can vote, so do it

"Vote" sign with "V" replaced with a check mark

By Professor Josh Douglas

To encourage voting this year, Professor Josh Douglas has penned an Op-Ed for the Lexington Herald-Leader that explains the importance of heading to the polls.  

Just over 50 years ago, President Lyndon Johnson signed the Voting Rights Act, which had the effect of providing robust protection to the right to vote, particularly for racial minorities.

Most people agree that voting is the most important right we enjoy. All other freedoms stem from voting in a free and fair democracy. People fought, and died, to secure the right to vote.

This history makes it even more shameful that only a quarter of Kentuckians in 2011 took advantage of that precious right. There was a 28 percent turnout in the last off-year election, the last time we chose our governor and other statewide constitutional officers.

That is, simply put, abysmal.

Although 28 percent is in line with historical turnout patterns in off-year elections in America, we should not settle for it. We can do better.

To continue reading this article click here.

What to Bring to the Polls: Some Quick Notes on Kentucky's Voter ID Law

wallet with various forms of identification

By Chris Stewart

Seemingly every election cycle, there are new stories, controversies, and laws surrounding what identification voters are legally required to present in various states. Indiana's voter ID law created a battle which wound up at the Supreme Court, where the law was upheld. Parts of Texas's voter ID law were struck down by the federal Fifth Circuit Court of Appeals in August of this year. And other disputes over voter ID laws have made news out of ArkansasWisconsin, and North Carolina, among others.

With so much news on the subject, it is worth clarifying what Kentucky's rules are governing voter ID before the November gubernatorial election. Unlike all of the states mentioned above, Kentucky has no specific photo identification requirement to vote. Instead, the law only requires that the poll worker verify the voter's identity by "personal acquaintance," or with some document such as a driver's license, social security card, or credit card. The regulations allow other forms of picture ID as well, so long as the photo ID contains the voter's picture and signature. But although a photo ID is a permissible form of identification, it is not required.

So, if your driver's license is expired, lost, or faded beyond recognition, you should not let that stop you from coming to the polls on November 3. So long as you have any of the other forms of ID mentioned above, such as a credit card with your name on it, you can still vote. Should you encounter any difficulty with presenting your form of identification, immediately contact the Kentucky Attorney General's Election Day hotline at (800) 328-8683 or (800) 328-VOTE. 

What Actually Happens During a Kentucky Recanvassing?

Commonwealth of Kentucky symbol

by Professor Josh Douglas

County Clerks offices around Kentucky will be busy Thursday morning as they re-tally the votes in not just one, but two Republican primary races.  (In addition to recanvassing the 83-vote margin between gubernatorial hopefuls Matt Bevin and James Comer, Republican Richard Heath has asked for a recanvass of his 1,427 vote loss to Ryan Quarles for state agriculture commissioner.) 

But what will the County Clerks offices actually be doing on Thursday at 9:00 am when they recanvass these races?  It is fairly simple, and it depends on the kind of vote counting system each county uses.  The recanvass essentially mimics the counting process from election night.

Counties tally the results from electronic voting machines in one of two ways.  First, some counties have a “central tabulation system.”  In this method, each machine has a memory cartridge that contains the vote totals.  On election night, those cartridges are fed into the county’s central tabulation system, which reports the county-wide vote totals for each candidate.  During the recanvass, the tabulation system is set to zero, and the County Clerk re-enters the memory cartridges for the central tabulation system to count again. 

Second, some counties use voting machines that produce a print-out of the vote totals.  During the recanvass, County Clerks will compare the print-out from each machine with the county-wide count, basically re-calculating the county-wide totals from the precinct-level print-outs.

Finally, for any voters who used purely a paper ballot – such as some absentee voters – the Counties re-tally these ballots using the “same procedure” they used on election night to count the ballots.  The recanvass will also include any late-arriving absentee ballots that a court has ordered the state to count, such as the six Republican absentee ballots from military voters who received their ballots late.

The process is fairly quick; it should take no more than an hour or two for each county.  It simply requires the County Clerks to re-run the machine count of vote totals – either through the county’s central tabulation system or by comparing the machine print-outs with the initial county-wide totals. The counties must immediately fax the new totals to the Secretary of State, who will add up the numbers from around the state.  Secretary of State Alison Lundergan Grimes has outlined these procedures in this memo, which also includes the form the County Clerks must use, and the local Board of Elections must sign, to report the vote totals after the recanvass.

These “re-checks” become the final, official count.  Historically, vote totals have not changed by much during Kentucky recanvasses.  This is because both the election night count and the recanvass are the same computer-run process, just done over again.  Unless there is a major computer glitch, therefore, the vote totals are likely to be about the same. 

We should know, by Thursday afternoon, who won these races, at least for the purposes of the state’s “official “count.  But any movement in the numbers, especially a reduction in Matt Bevin’s 83-vote lead for the Republican gubernatorial nomination, could encourage James Comer to request a recount or election contest.  A recount requires a judge to conduct an actual physical recounting of ballots – a much more intensive process that is more likely to see wider vote changes.  Candidates must decide by Friday, May 29 whether to take these more drastic routes by filing a petition with the court in Frankfort. 

In the meantime, we will all watch the fairly mundane process of the recanvassing in each county.  The political calculations will follow.

The Kentucky Republican Gubernatorial Primary Goes Into Extra Innings: What Happens Next?

Kentucky Governor's Mansion

by Professor Joshua A. Douglas and Senior Editor Thomas E. Travis

83 votes. That’s all that separates Kentucky GOP gubernatorial hopefuls Matt Bevin and James Comer. What has already been an ugly campaign is about to become even uglier.

Kentucky has three levels of post-election procedures: a recanvass, a recount, and an election contest.  Comer, who is currently down in the vote count, has already indicated that he plans to invoke the first process and seek a recanvass; it is unclear if he will go further with a recount or election contest.

Under Kentucky law, a candidate has a week from Election Day to file a request for recanvassing with the Secretary of State. Comer announced last night that he will file his request this morning. The recanvassing will occur on Thursday, May 28, during which county election boards will recheck each machine and report the figure back to the county clerk. The law allows a representative from both the Comer and Bevin campaigns to be present as the recanvassing occurs. Essentially, the recanvassing process simply checks each machine to make sure that the numbers reported to the State Board of Elections were not misreported or incorrectly added.  Ballots themselves are not recounted; instead, a recanvass is simply a way to double check that the machines tallied the votes correctly.

Comer will likely find the recanvassing process futile. Former Secretary of State Trey Grayson noted late Tuesday night that the recanvassing is unlikely to change the outcome. As a matter of recent history and anecdotal evidence, in the 2010 general election for U.S. Congress, then-challenger Republican Andy Barr gained only one additional vote after seeking a recanvass in an attempt to reverse his 649-vote deficit to incumbent Democratic Congressman Ben Chandler.  Unless there was an anomaly with a machine, then, the Comer recanvass seems unlikely to change an eighty-three-vote difference.

Assuming the recanvassing does not yield enough votes to cover Bevin’s lead, Comer faces a much more difficult decision. Per Kentucky law, there is no automatic recount process in Kentucky. Instead, Comer would have to file a petition with the Franklin Circuit Court, by May 29, to seek a formal recount.  Comer would have to front the cost of the recount.  A Kentucky Judge would manage the recount procedure.  That Judge would take possession of the voting machines and paper ballots and would conduct his or her own recount of the ballots.  As about 1/3 of Kentucky voters use an electronic voting machine with no paper trail, in a “recount” of these votes the Judge would simply check the count of the machine once again – making it more like a recanvass, at least for these ballots.  But for the other 2/3 of voters, the Judge can actually recount each ballot.  The judge’s decision on who won would be final, subject to possible appeal to the Kentucky Court of Appeals or even the Kentucky Supreme Court.

Then there’s an election contest. Once again, Comer would have to request one by May 29, so he might do so in conjunction with his request for a recount.  An election contest is even more judicial in nature, as Comer would have to specify the grounds for the action – such as some form of “corrupt practice” like a violation of state campaign finance rules or particular issues with the vote casting process.  For instance, if the margin of victory somehow is within 12 votes, than a lawsuit filed on Monday regarding 12 military voters who did not receive their ballots on time might come into play.

The recanvass will be complete on May 28, but a recount or election contest can last for several weeks.  Politically, then, Comer has to make a decision about how long he wants to continue the fight.  The state GOP intends to conduct a unity rally for the general election on May 30.  [Update: The state GOP now says it will not hold the unity rally on May 30.]  That unity rally may be important to Republicans given the highly contentious and fractured nature of the campaign so far.  Yet it also might be tough for Comer to give up the fight, especially as a recount is more likely than a recanvass to see vote swings that might cover 83 votes.

This primary has already been notorious for its intra-party squabbling among the candidates.  That seems likely to continue as the election enters extra innings.  Ultimately, the courts may be called upon to determine who actually won.

Unsuccessful Lawsuit Turns Into A Successful Election

Kentucky State Capitol

by: Sloane Skinner

Kentucky Republican Ralph Alvarado defeated Democrat (and Senate Minority Leader) R.J. Palmer II for Kentucky’s 28th District Senate Seat, turning the table after Palmer’s victory over Alvarado in 2010.

Alvarado sued Palmer’s campaign for defamation after it released an ad portraying Alvarado, a Winchester physician, as a drug dealer and alleging that he had improperly billed for Medicaid and Medicare. The thirty-second video contained spliced courtroom footage that depicted Alvarado prescribing a criminal defendant illegal drugs. According to Alvarado, he had legally prescribed the defendant painkillers for a pain associated with a prior injury.

Alvarado further claimed he is employed by KentuckyOne Medical Group and is paid a salary, and therefore he does not bill for Medicaid or Medicare.

Alvarado brought suit last week seeking an order requiring Palmer to stop running the ad.  That lawsuit was unsuccessful, with the judge’s ruling resting on the First Amendment.

Although Alvarado lost the legal battle, the lawsuit still may have assisted his cause.  Politically, the lawsuit helped to bring the issue to the forefront of the campaign.  In the end, then, Alvarado’s efforts were likely not in vain because he won the election.  His fight to defend his reputation could have potentially helped him secure victory. The spliced courtroom footage caused Alvarado to appear as a victim, and it could have caused voters to come to his side.  

Sometimes, election litigation is not solely about winning that one court case.  Often there are political motives as well.  Alvarado’s case demonstrates the political implications of a legal challenge to a campaign ad.

2014: Foreshadowing the Future of American Voting

Ballot box with vote being dropped in

by: Joshua Bryant

What is one of the significant takeaways from the 2014 election? The traditional way Americans vote is changing. Voting has traditionally been the Tuesday after the first Monday in November, during specific times set by state legislatures. Why? Because in 1845, when Congress picked this date, Tuesday did not conflict with Sunday Church services and by November most of the harvest was over.

Today, however, the majority of Americans are not farmers, and it no longer requires an overnight horse and buggy trip to travel to a polling place. Recognizing changing demographics, states across the nation have begun to expand their voting periods. Currently thirty-three states and the District of Columbia allow people to vote in person prior to Election Day. This election cycle, Missouri proposed an amendment to its constitution that could allow voters to cast their ballots in person or by mail for six business days if the legislature and the governor provide the necessary funds.

In addition, online voting and registration has become more prevalent.  According to an Op-Ed in the USA Today “31 states will allow over 3 million voters to cast ballots over the Internet in this election.” This is an option that is limited to military and overseas voters in most states, but Alaska is now permitting all of their voters to vote online. 

These new measures are meant to expand voting, but they have run into some roadblocks.  A critique of early and longer voting periods is that they increase the already high cost of political campaigns. Another criticism is that, historically, increasing the opportunity to vote has not necessarily increased voter turnout and participation.

The newer territory of online voting also presents unique challenges. Keeping these votes secure and trustworthy is a big concern, but technical issues could also prove to be a stumbling block. For example, in this election cycle Texas, Georgia, and Colorado all experienced major technical issues in their online registration systems.

These changes to the traditional way we vote could increase turnout and make it easier for people to vote. However, there are still many kinks to work out, and in the end only time will tell if these expansions will expand voting to more voters. 

Runoffs & Recounts: What Happens Next?

"Vote" sign with American flag and an arrow

by: Thomas Travis, Olivia Snider, Hunter Shelman, and Tyler Mullins

Many of the close election results tonight suggest that a few Senate races may be going into recounts or runoff elections.  Here’s what would happen next.

As we discussed earlier, Louisiana will be holding a runoff election, and Florida very well could face a recount, although some networks have called the race for incumbent Republican Rick Scott.

North Carolina, Kansas, and Virginia may be facing recounts, but none of them would be mandatory—that is, a candidate must demand the recount.  The state will not automatically recount the votes.

In North Carolina, a candidate can demand a recount of the votes if the difference between the candidates is less than 0.5% of the votes cast or 10,000 votes, whichever is less. The county election boards conducting the recount pay for the cost of the recount.

Kansas recounts may occur if there is a discovery of errors in the poll books that may affect the results of the election or by request. The candidate who requests the recount bears the cost unless the results show that a candidate was defeated by 0.05% or less of the total number of votes, in which case the state shall bear the cost of the recount.

Finally, in Virginia, a trailing candidate can ask for a recount, and only if the difference between the apparent winning candidate and the apparent losing candidate is not more than 1% of the total votes cast for those two candidates. The counties and cities involved in a recount are responsible for paying their own costs of the recount if the margin between the two candidates is less than 0.5%, or if the candidate requesting the recount is declared the winner by the recount court. Otherwise, the candidate who requested the recount must pay the costs for conducting the recount.

Election Day Complaints

Voter ID Sign

by: Mary Tanner

Election Day complaints from voters often tell us how our election system is operating.  Today’s election might provide further evidence to that debate. 

British news service The Guardian is reporting unusual levels of "election glitch" calls to the US's largest nonpartisan voter protection group.  The highest level of calls to the Lawyers' Committee for Civil Rights Under Law have come in from Florida, Georgia, and Texas, though several calls also came from Louisville, Kentucky. The group attributes a number of the calls to voter ID laws. Several organizations, including the American Civil Liberties Union,  have criticized voter ID laws for targeting minority and low-income voters. The reported calls to the Lawyer’s Committee from Louisville included complaints from Latino voters saying they had been "treated discourteously by election officials and discouraged from voting," which would be a Class D felony as governed by KRS 119.155.  Kentucky is among states that require voters identify themselves at the polls.

An October study identified the voter ID issue as deeply partisan, concluding that, “the furtherance of restrictive voter ID laws is a means of maintaining Republican support while curtailing Democratic electoral gains.”  Courts around the country have ruled on both sides of the issue, and the Supreme Court issued a number of stays against voter ID requirements, most recently in Wisconsin.  

It is impossible to know, of course, whether these laws will affect election outcomes or harm voters.  But these reports at least provide information for legislatures to consider as they debate how to reform our election system.

Closing Time? The Extension of Polling Station Hours

Closed sign (as in an business

by: Olivia Snider and Matthew Dearmond

There have been several reports of requests throughout the country for judges to extend polling hours. Earlier this evening a judge in DeKalb County, Georgia ruled  that a local polling place must remain open until 7:15 p.m., fifteen minutes past the regularly scheduled closing time. A Hartford Superior Court judge ordered the extension of voting hours at two polling stations by 30 minutes.  Also, Democratic Florida Gubernatorial candidate, Charlie Crist just filed a motion requesting the judge to extend the polling hours in Broward County, Florida from 7:00 p.m. to 9:00 p.m.  As races are close in all of these places, the court-ordered extensions could even prove decisive.

In a world where litigation has essentially become campaign strategy, lawsuits seeking to extend the polling hours are a common tactic. Election days rarely go off without a hitch, and it seems that every election year, something happens to prompt a request for an extension of polling hours. Judges sometimes try to rectify these extreme circumstances by extending polling hours.

In DeKalb, the judge granted the 15 minute extension due to the fact that the voting did not begin until 15 minutes after the regularly scheduled time. The extension in Hartford is the result of similar circumstances, as a number of the local polling stations failed to open on time as a result of unprepared voter registration lists. Similarly, Crist’s motion focuses on many polling stations that did not open until 8:45 a.m. due to equipment malfunctions. This sort of delay in opening the polls is often the reason for extending the polling hours, but there are also a number of other reasons that may lead a judge to grant an extension.

 In previous elections, judges or election officials have granted extensions of the polling hours because of difficulties at polling places. In 2006, a bomb threat in Wisconsin caused a polling station to close for three hours until the area was deemed secure and election officials determined  that such a disruption justified a one-hour extension of the polling hours. Two years later, a 2008 ice storm caused a Maryland judge to grant a ninety-minute extension to the polling hours. With such a wide range of circumstances justifying extensions, and judges recognizing the great importance of affording citizens the opportunity to exercise their right to vote, it is perhaps not that surprising that two judges have granted extensions today. 

The fact that polls have closed in Florida already complicates the Crist motion, and we will see what the court decides soon.