16 thoughts on “Remember, Ix-Nay on the Allot-Bay Elfie-Say!”

1. Or do, and we can get the 10th Circuit to join the 1st in declaring what a ridiculously unconstitutional restriction this is on speech.

   Federal Appeals Court Strikes Down Ballot Selfie Ban

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   1. I think since nude dancing has been found to be protected speech, that you can take a selfie with your ballott covering your private parts and fall well within the first amendment.

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2. This law is on the books, but the United States Court of Appeals for the 1st Circuit (Colorado is in the 10th Circuit so it isn’t directly applicable although it is persuasive authority) recently held that a virtually identical law was unconstitutional (via The Volokh Conspiracy):

   From Wednesday’s decision by the U.S. Court of Appeals for the 1st Circuit in Rideout v. Gardner:

   “In 2014, New Hampshire amended a statute meant to avoid vote buying and voter intimidation by newly forbidding citizens from photographing their marked ballots and publicizing such photographs. While the photographs need not show the voter, they often do and are commonly referred to as “ballot selfies.” The statute imposes a fine of up to $1,000 for a violation of the prohibition.”

   The court held this statute violated the First Amendment; whether or not it’s viewed as content-based (and I think it should be), the statute is unconstitutional because it fails even the “intermediate scrutiny” applied to content-neutral speech restrictions:

   “In order to survive intermediate scrutiny, [the statute] must be “narrowly tailored to serve a significant governmental interest.” Though content-neutral laws “‘need not be the least restrictive or least intrusive means of’ serving the government’s interests,” “the government still ‘may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.'” The statute fails this standard….

   Digital photography, the internet, and social media are not unknown quantities — they have been ubiquitous for several election cycles, without being shown to have the effect of furthering vote buying or voter intimidation. As the plaintiffs note, “small cameras” and digital photography “have been in use for at least 15 years,” and New Hampshire cannot identify a single complaint of vote buying or intimidation related to a voter’s publishing a photograph of a marked ballot during that period. Indeed, Secretary Gardner has admitted that New Hampshire has not received any complaints of vote buying or voter intimidation since at least 1976, nor has he pointed to any such incidents since the nineteenth century. “[T]he government’s burden is not met when a ‘State offer[s] no evidence or anecdotes in support of its restriction.'” …

   But even accepting the possibility that ballot selfies will make vote buying and voter coercion easier by providing proof of how the voter actually voted, the statute still fails for lack of narrow tailoring…. At least two different reasons show that New Hampshire has not attempted to tailor its solution to the potential problem it perceives.

   First, the prohibition on ballot selfies reaches and curtails the speech rights of all voters, not just those motivated to cast a particular vote for illegal reasons. New Hampshire does so in the name of trying to prevent a much smaller hypothetical pool of voters who, New Hampshire fears, may try to sell their votes. New Hampshire admits that no such vote-selling market has in fact emerged. And to the extent that the State hypothesizes this will make intimidation of some voters more likely, that is no reason to infringe on the rights of all voters.

   Second, the State has not demonstrated that other state and federal laws prohibiting vote corruption are not already adequate to the justifications it has identified. New Hampshire suggests that it has no criminal statute preventing a voter from selling votes. That can be easily remedied without the far reach of this statute…. The ballot-selfie prohibition is like “burn[ing down] the house to roast the pig.” Butler v. Michigan, 352 U.S. 380, 383 (1957).”

   The U.S. Supreme Court’s decision invalidating the Stolen Valor Act as unconstitutional and reversing the 10th Circuit holding that the Stolen Valor Act was valid in the process in the 2012 case of U.S. v. Alvarez is particularly relevant. In that case, it was undisputed that the Defendant and knowingly misrepresented his own military service in a political context for his own political gain. The 10th Circuit applied the usual rule that false statements are not protected by the First Amendment. But, SCOTUS in U.S. v. Alvarez held that even knowingly false statements made in the context of political debate are protected by the First Amendment and invalidated the law. Given the breadth of the special treatment that SCOTUS has given to political speech and the persuasive authority of the 1st Circuit ruling, there is a very good chance that any prosecution under the no ballot selfie statute would be held unconstitutional.

   In any case, a District Attorney and law enforcement have full and absolute discretion to refrain from enforcing any criminal statute for any non-discriminatory reason, and can certainly do so if the statute in question has doubtful constitutionality, or where enforcement would simply not serve the public interest under current circumstances which have changed since the law was enacted. For example, President Obama in a critical move to advance gay rights, refused to defend the Defense of Marriage Act when it was challenged as unconstitutional. California’s Attorney General took a similar position when an anti-gay marriage Proposition 8 was challenged in that state.

   This is one of a string of instances of serious bad judgment by Mitch Morrisey (see also e.g. his decision to re-prosecute a man wrongfully convicted of rape when someone else has confessed to the crime and his repeated failure to find that Denver police have ever used force improperly contrary to many civil jury findings in civil rights case), who thankfully is term limited and will leave office in January. This is one of many good reasons to prefer Democrat Beth McCann, who promises significant positive changes in policy in the DA’s office for Denver to Helen Morgan, running as in independent in the race, who is Morrisey’s chief deputy and chosen successor who implicitly is the “preserve the status quo” candidate in the race.

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   1. Vote buying used to be a problem, and the origin of these laws dates way back to at time when it was a real concern. The court's ruling seems to indicate that it would have to once again be a proven issue before ruling that such a law is necessary. That's the kind of ruling that got us Citizens United, the repeal of Glass-Steagall, and the rejection of the classification of certain states under the VRA.

      Of course, admitting that having ballots viewable outside of the private, protected ballot booth might be less than secure could also invite challenge of mail-in ballot systems.

      Maybe we do need an actual example before it's taken seriously the way that it used to be. Or maybe intimidation backed by a cash carrot is beyond us anymore and it really is time to repeal these laws; I'm not convinced.

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      1. If vote buying was a problem prior to digital photography, how does preventing digital photography address it?  How does punishing people for publishing a photo prevent vote buying when one could privately send a photo if that were required?  Even with those caveats, if vote buying were occurring, it still might not outweigh the intrusion into political speech these laws engender.

          

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3. Curious: What year was the law passed? Does it apply to retroactively to "selfies" made before that time?

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   1. The law says "show," not "record," so the showing is the bad thing.

      Having said that, there's no law that I'm aware of in Colorado that prevents you from taking a picture of your marked ballot, so long as you don't share it.

      CRS 1-13-712(1) Except as provided in section 1-7-108, no voter shall show his ballot after it is prepared for voting to any person in such a way as to reveal its contents.  No voter shall place any mark upon his ballot by means of which it can be identified as the one voted by him, and no other mark shall be placed on the ballot by any person to identify it after it has been prepared for voting.

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      1. Good point. The law could perhaps be saved by interpreting show in subsection (1) to mean to show for the purposes of violating subsections (2) or (3) of the same section of the election law.

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   2. The law was enacted in 1980, effective January 1, 1981, but this was merely a recodified existing law that had been in place since the late 1800s or early 1900s as a progressive era election law reform designed to curb political party "machines".

      § 1-13-712. Disclosing or identifying vote

      (1) Except as provided in section 1-7-108, no voter shall show his ballot after it is prepared for voting to any person in such a way as to reveal its contents. No voter shall place any mark upon his ballot by means of which it can be identified as the one voted by him, and no other mark shall be placed on the ballot by any person to identify it after it has been prepared for voting. 

      (2) No person shall endeavor to induce any voter to show how he marked his ballot. 

      (3) No election official, watcher, or person shall reveal to any other person the name of any candidate for whom a voter has voted or communicate to another his opinion, belief, or impression as to how or for whom a voter has voted. 

      (4) Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in section 1-13-111.

      Cite as C.R.S. § 1-13-712

      History. L. 80: Entire article R&RE, p. 434, § 1, effective January 1, 1981.

      Editor's Note:

      The provisions of this section are similar to provisions of several former sections as they existed prior to 1980.

      The punishment section cross-referenced states:

      § 1-13-111. Penalties for election offenses In all cases where an offense is denominated by this code as being a misdemeanor and no penalty is specified, the offender, upon conviction thereof, shall be punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment. Cite as C.R.S. § 1-13-111 History. L. 80: Entire article R&RE, p. 430, § 1, effective January 1, 1981. Editor's Note: This section is similar to former § 1-13-104(2) as it existed prior to 1980.

      The exception to Subsection (1) states:

      § 1-7-108. Requirements of watchers

      (1) Watchers shall take an oath administered by one of the election judges that they are eligible electors, that their name has been submitted to the designated election official as a watcher for this election, and that they will not in any manner make known to anyone the result of counting votes until the polls have closed.

      (2) Neither candidates nor members of their immediate families by blood, marriage, or civil union to the second degree may be poll watchers for that candidate.

      (3) Each watcher shall have the right to maintain a list of eligible electors who have voted, to witness and verify each step in the conduct of the election from prior to the opening of the polls through the completion of the count and announcement of the results, to challenge ineligible electors, and to assist in the correction of discrepancies.

      Cite as C.R.S. § 1-7-108

      History. Amended by 2013 Ch. 185, §62, eff. 5/10/2013. L. 92: Entire article R&RE, p. 734, § 9, effective January 1, 1993. L. 93: (1) amended, p. 1417, § 66, effective July 1. L. 2013: (2) amended, (HB13-1303), ch. 185, p. 719, §62, effective May 10. Editor's Note: This section is similar to former § 1-7-105 as it existed prior to 1992.

      Case Notes: ANNOTATION Law reviews. For article, "Watchers in Colorado Elections", see 43 Colo. Law. 37 (June 2014). Cross References: In 2013, subsection (2) was amended by the "Voter Access and Modernized Elections Act".

      For the short title and the legislative declaration, see sections 1 and 2 of chapter 185, Session Laws of Colorado 2013.

      The statute of limitations ran long ago for pre-enactment offenses from more than 35 years ago.

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      1. Many thanks for your input on the matter.

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4. The ballot selfie ban is clearly unconstitutional, as ohwilleke amply demonstrates.

   But the statute itself would not apply to a ballot selfie. It states "no voter shall show his ballot…." However, a picture of a ballot is not a ballot, as Rene Magritte's "The Treachery of Images" demonstrates.  Call it the "Ceci n'est pas une bulletin de vote" defense.

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   1. That is hair that I believe a court would not split.  Courts would generally, I think, follow the transitive property of showing.  He shows the photo.  The photo shows his ballot.  Therefore, he shows his ballot.

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      1. Nope. A thing and a representation of a thing are not the same thing.

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         1. I'm going with Pseud on this one. Clearly the selfie is a means of showing your ballot. Following your logic, video of a criminal act would be meaningless as evidence because a representation of a thing isn't that thing.

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            1. Your analogy makes no sense, since you're confusing a crime with evidence of a crime. If I rob a bank and someone has a video of me robbing the bank, that is evidence that I robbed the bank.  But the video is not itself a bank robbery.

               The crime is showing your ballot to any person. Evidence of the crime of showing your ballot would be a picture of you showing your ballot to someone. But a selfie of you holding your ballot is not evidence that you showed your ballot to another person. Nor is a picture of your ballot the same thing as your ballot. any more than burning a picture of a building is arson.

                

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5. Come and get me, Coppers!

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