“There could be early voting in your town too. If not, November 8th!” Timberlake wrote. “Choose to have a voice! If you don’t, then we can’t HEAR YOU! Get out and VOTE!” Great idea for a “go vote” message from someone with millions of Instagram followers, right? Not quite, because in Tennessee, it’s illegal to take photos or videos in a polling place.
Timberlake has since deleted the incriminating selfie after a day of confusion over whether the star would face any legal consequences for posting it (the answer is, he won’t, in case you were wondering).
But the confusion sums up the state of the laws across the country that govern voter selfies, as a recent review from the Associated Press of each state’s policy makes clear. It was illegal in 18 states to take them, the AP found in their review in late October. Ballot selfies are currently legal in 20 other states, plus the District of Columbia, even if many of those states appear to frown upon the practice.
And in a few states, like California and Colorado, existing bans have gone to court in a series of last-minute battles to clarify whether voters will be able to snap selfies with their ballots on Tuesday.
For the rest of the country, though, the answer to the question “Can I take a selfie with my ballot?” is basically some degree of ¯\_(ツ)_/¯.
In Texas, the law prohibits photographs within 100 feet of a polling station, but it says nothing about snapping and posting a picture of a mail-in ballot. Oklahoma officials told the Associated Press that the law appears to ban it, but the penalties for violating the law by posting a ballot selfie aren’t clear. In Missouri, voters are banned from showing their ballots to anyone else if the “intent is to show how they voted,” the AP writes. The Missouri secretary of state’s office told the AP that ballot selfies were a “gray area” under that prohibition.
Those are the easier ones to explain. California recently passed a bill repealing its ban on voters showing others their filled-in ballots — a 125-year-old law that, according to the AP, the state has never actually enforced — but it won’t go into effect until after this Election Day. This week, a federal judge denied the American Civil Liberties Union’s request to allow voter selfies on Tuesday in the state.
Even in Connecticut, a state that the AP listed as a place where voter selfies are “legal,” based on a statement to them from the Connecticut secretary of state’s office, officials have the power to ban behavior that “threatens the orderly process of voting or the privacy of another voter’s ballot” at their discretion, which could presumably include ballot selfies.
Other states have gone to court to determine whether it’s okay to ballot-selfie, with photo-sharing supporters arguing that it’s a right under the First Amendment. A federal judge banned Indiana from enforcing its law against ballot selfies last year. The U.S. Court of Appeals for the 1st Circuit struck down New Hampshire’s 2014 ban in September.
Just weeks before the election, a federal judge ruled that Michigan couldn’t enforce its ban on ballot photographs. But it looks like the Michigan ban is back on the books again, for now, after the U.S. Court of Appeals for the 6th Circuit in Cincinnati ruled a week ago that the state could enforce its ballot selfie ban on Tuesday after all.
Michigan was just one of a handful of states facing last-minute court challenges to their bans. A judge refused to block New York’s ballot selfie ban on Thursday.
In Colorado, a federal judge ruled on Friday that the state couldn’t enforce its ban, making “ballot selfies” legal there, for now. The kerfuffle in Colorado began in late October, when Denver’s district attorney sent out a news release reminding voters that ballot selfies are illegal in the state, leading to widespread confusion about whether the state would actually enforce its ban this year. The Denver Post has more on the context.
A lot has changed since 2014, when The Intersect first looked at the legality of ballot selfies. For one thing, several states appear to have clarified their policy on the practice, either through the legislative process or through statements to, for instance, the AP for their recent review. But the tension that makes this such a weird issue to resolve is still more or less the same:
“It’s a very unusual case,” says Jeffrey Hermes, the deputy director of the Media Law Resource Center in New York. “Usually banning political speech would be a violation of the First Amendment. But with photography at polling places, there’s an intersection of two fundamental aspects of democracy: freedom of speech and the integrity of the voting process.”
Regardless of how confusing the law might be right now on whether it’s okay to snap that ballot selfie, a quick scroll through the #ivoted hashtag on Twitter makes it clear that plenty of people are still going to take them anyway. If you’re among those planning one, consider reading up on your state’s law before going ahead with it, though.
This post has been updated multiple times.