Tag Archives: Election Law

Mr. Wallace Goes to Court (Update: He Won)

UPDATE: By Order issued 4/10/2018, Nashville’s Mayoral Election must be held in May.  The Court’s unanimous opinion is available here.  

“We are grateful that the Tennessee Supreme Court has issued a powerful, persuasive, and unanimous opinion vindicating Mr. Wallace’s claim that the Charter is clear and that Metro Government cannot unilaterally nullify a referendum supported by 83% of voters.” —Jamie Hollin and Daniel Horwitz, Counsel for Ludye Wallace

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Yesterday afternoon, the Tennessee Supreme Court’s full gallery of onlookers was treated to an unprecedented event: an emergency appeal demanding that Metro Nashville hold a near-immediate special election to fill the vacancy in its Mayor’s office.  The office became vacant on March 6, 2018, when ex-Mayor Megan Barry resigned after pleading guilty to felony theft.  Following an extraordinary oral argument in which lawyers for the city argued that they had provided an “inaccurate” ballot summary to voters, the Court announced that it would issue a ruling sometime this week.

The emergency appeal—filed on behalf of Mayoral candidate and former Metro Councilman Ludye Wallace—centers on Section 15.03 of Nashville’s Metro Charter.  In pertinent part, that section reads: “There shall be held a special metropolitan election to fill a vacancy for the unexpired term in the office of mayor . . . whenever such vacancy shall exist more than twelve (12) months prior to the date of the next general metropolitan election.”  Consequently, the case turns on when “the next general metropolitan election” is scheduled to take place.  If, as Mr. Wallace argues, “the next general metropolitan election” is not until August 2019, then a special election must be held in May.  If, as Metro argues, there will be a “general metropolitan election” in August 2018, however, then the election can be held then.

Helpfully, the Metro Charter expressly defines “general metropolitan elections.”  One provision of the Charter—Section 15.01—is specifically titled “When general metropolitan elections held,” and it makes clear that such elections are only held every fourth August in odd-numbered years.  Another Charter provision referring exclusively to those four-year August elections—Section 15.02—uses the term “the general metropolitan election” seven separate times.  And another Charter provision—Section 18.06—reflects that Metro has uniformly considered those specific four-year August elections to be the only type of “general metropolitan elections” for decades.

Most clearly, however, because Section 15.03 was enacted by voter referendum in 2007, Metro was also required to provide a summary of the provision at the time that it was being considered for adoption by voters.  By law, that summary had to be “worded so as to convey [the amendment’s] meaning.”  Helpfully, in clear (and admittedly unambiguous) terms, the ballot summary stated: “This amendment would require that a special election be held to fill a vacancy in the office of mayor . . . whenever more than twelve (12) months remain in the unexpired term.”

Because more than eighteen months remained in ex-Mayor Barry’s term when she resigned, it would seem clear that Section 15.03 requires “that a special election be held to fill a vacancy in the office of mayor,” since all agree that “more than twelve (12) months remain in the unexpired term.”  Attempting to avoid this result, however, Metro lawyers argued to the court yesterday that the ballot summary they provided to voters was inaccurate.

Responding to that claim, Mr. Wallace’s counsel argued that such a position—if tolerated—would call “the integrity of the referendum process and the democratic process itself into question.”  Although that contention did not appear to be well-received by one Justice, it was certainly well supported.  Under similar circumstances, court after court has held that “[t]he citizen initiative constitutional amendment process relies on an accurate, objective ballot summary for its legitimacy.”  See In re Advisory Opinion to the Atty. Gen. re Additional Homestead Tax Exemption, 880 So. 2d 646, 653 (Fla. 2004).  See also Zukerberg v. Bd. of Elections & Ethics, 97 A.3d 1064, 1079 n. 77 (D.C. 2014) (“the summary is very important, because it will likely form the basis of a voter’s decision.”).  In a recent decision concerning Amendment 1 to the Tennessee Constitution, the U.S. Court of Appeals for the Sixth Circuit similarly explained that misleading voters without notice creates a Due Process problem.

Here, in undisputed reliance upon Metro’s “inaccurate” ballot summary, 83 percent of Nashville’s voters voted in favor of the amendment, and it carried every single precinct in the county.  As Mr. Wallace has argued, the measure also ensures that Nashville’s residents will promptly be able to ensure “that their Mayor is someone who was actually elected to represent them.”  Consequently, the notion that Metro can bait voters into supporting a referendum under a specifically defined set of terms and then attempt to change the provision’s meaning after the fact is, frankly, preposterous.

In a statement released to the media after the Tennessee Supreme Court exercised its jurisdiction to hear the case, Mr. Wallace’s lawyers stated that “[w]e are optimistic that the unambiguous terms of the Metro Charter and the clearly expressed will of 83 percent of Nashville’s voters will soon be vindicated.”  For the sake of the rule of law—and to protect the legitimacy of the referendum process—every Metro voter should hope they’re right.

Selected Case Documents

*Tennessee Supreme Court’s Opinion and Order

Wallace Principal Brief

Metro’s Principal Brief

Wallace Reply Brief

Wallace Application for Extraordinary Jurisdiction

Selected Media Coverage

-The Tennessean: Tennessee Supreme Court moves up Nashville mayoral special election to May

-The Nashville Scene: Supreme Court: Mayoral Election Must Be Held in May

-The Nashville Post: Supreme Court moves mayoral election to May

-The Nashville Business Journal: Supreme Court strikes down August mayoral election date

-Nashville Business Journal: Tennessee Supreme Court to decide fate of Nashville mayoral election

-WPLN: Nashville Must Hold Next Mayor’s Election In May, Court Rules

-Nashville Post: Supreme Court will decide mayoral election date

-Nashville Scene:  Metro Legal Could Cost the City Money for Another Election

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Tennesseans for Sensible Election Laws: It Shouldn’t Be a Crime to Make Fun of Your State Representative. In Tennessee, It Is.

Republished with permission from Tennesseans for Sensible Election Laws, a new organization seeking to ensure that Tennessee’s election statutes, policies, and regulations protect the rights of all Tennesseans to participate in democracy and support candidates of their choosing without unreasonable governmental interference.

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If you decide that you’ve had enough of the nonsense in Nashville and you send postcards to potential voters claiming your representative “has cauliflower for brains”—or if you publish or distribute any other “campaign literature in opposition to any candidate in any election” that you know to be false—police can arrest you for committing a Class C misdemeanor, lock you in a cage for a month, and fine you for every postcard you send.  Frighteningly, if Tennessee House Representative Karen Camper (D-Memphis) and Tennessee Senator Reginald Tate (D-Memphis) get their way, the “crime” of distributing false campaign literature would be elevated to a Class A misdemeanor, allowing the state to lock you up for nearly a year.

What country is this, and what happened to America?

The often-misunderstood Citizens United v. FEC case turns eight years old this year.  In that case, the Supreme Court ruled that the First Amendment protects people from being thrown in jail for exercising their right to free speech.  What better time is there to explore why the ideas behind Tenn. Code Ann. § 2-19-142 are so bad?

It goes without saying that giving government officials the power to imprison people who criticize or make fun of them is a dangerous, slippery slope.  With that context in mind, it is also worth noting that the Camper/Tate bill that the General Assembly is considering this legislative session helps nobody more than it helps Rep. Camper and Sen. Tate.  If you can’t write that your representative has cauliflower for brains, what can you write?  You can write a bunch of boring technical, legal, or public policy jargon that most people don’t understand.  When people read those kinds of things, they either vote for people who already hold office—like Rep. Camper and Sen. Tate—or they get frustrated and don’t vote at all.  Either way, incumbents win.

In a case involving an Ohio state law that criminalized political speech the same way that Tenn. Code Ann. § 2-19-142 does, Cato Institute constitutional scholar Ilya Shapiro once argued to the Supreme Court that “‘truthiness’—a ‘truth’ asserted ‘from the gut’ or because it ‘feels right,’ without regard to evidence or logic—is . . . a key part of political discourse.”  He also recognized that “the government [is not] well-suited for evaluating when a statement crosses the line into falsehood.”  That’s doubly true for people who have both the power to make laws and a personal interest in the outcome of their next election.  (And ultimately, Shapiro proved right: Ohio backed away from trying to enforce its unconstitutional law against a nonprofit that wanted to put up a billboard.)

Further, Tenn. Code Ann. § 2-19-142 ignores that saying nasty things about the other guy or gal is as American as apple pie.  When Thomas Jefferson ran for president in 1800, he accused President John Adams of “trying to start a war with France,” “importing mistresses from Europe,” and committing that cardinal sin of “trying to marry one of his sons to a daughter of King George.”  Adams, a known verbal pugilist, repaid Jefferson in kind, saying that if people elected the man who wrote the Declaration of Independence, their homes would spontaneously combust.  (And thanks to Lin-Manuel Miranda, many people now know that Adams also called Alexander Hamilton a “Creole bastard”—but that was actually true!)

If politicians want to literally handcuff themselves from being able to joke about some of the more cartoonish candidates for Tennessee governor and U.S. Senate this year, I suppose they can be my guest—because that’s exactly what Tenn. Code Ann. § 2-19-142 does.  Of course, Tennesseans who support sensible election laws shouldn’t let this happen.  Vote against Rep. Camper and Sen. Tate in the next election.  After all, they have cauliflower for brains.

Paid for by Tennesseans for Sensible Election Laws.  George S. Scoville III, Treasurer.  Not authorized by any candidate or candidate’s committee, but we don’t think it should be a crime not to tell you that.

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Tennesseans for Sensible Election Laws is a non-partisan, non-profit group of concerned citizens who care about protecting Tennessee’s democratic process.  Our mission is to ensure that Tennessee’s election statutes, policies, and regulations protect the rights of all Tennesseans to participate in democracy and support candidates of their choosing without unreasonable governmental interference.

We work toward this mission by supporting pro-democracy candidates for public office, initiating strategic litigation, engaging in direct lobbying, and promoting public awareness.   Follow us on Facebook and Twitter, and please click here to support our work.

Can the Tennessee Democratic Party Disqualify Angie Dalton for Fundraising for Republicans?

By Daniel A. Horwitz:

Election season is back!  As Nashville gears up for a major transit referendum and readies itself to choose critical new officeholders for…Register of Deeds and several other county offices that we inexplicably elect, the time for junk mail, jingles, and internal party shenanigans is officially upon us.

This blog has previously tackled the issue of whether trying to vote in another party’s primary is illegal (it’s not).  For this edition of “is that really allowed?”, we examine whether a political party can disqualify a candidate from running as a Democrat after fundraising for Republicans (or vice versa).  The answer: Yes—and candidates can also be disqualified by parties for any other reason the party sees fit.

Yesterday afternoon, a Democratic voter in Nashville officially contested the Democratic qualifications of Angelita (“Angie”) Dalton, who is running for Criminal Court Judge.  In August of last year, before being elevated to Criminal Court Judge by Republican Governor Bill Haslam, then-General Sessions Judge Dalton apparently contributed $250.00 to the Republican Party of Tennessee after attending a GOP fundraiser headlined by Vice President Mike Pence:

The donation appears to implicate some judicial ethics issues—Rule 4.1(A)(4) of Tennessee’s Code of Judicial Conduct prohibits sitting judges from “mak[ing] a contribution to a political organization”—but Judge Dalton’s primary concern is certain to be political.  Given most Tennessee Democrats’ outright revulsion to Vice President Pence, to the Trump White House, and to the Tennessee Democratic Party’s chief political opponent (the Republican Party of Tennessee) in general, Democrats, it seems, are not pleased.

It should first be noted that despite their pervasiveness, political parties are private organizations that enjoy a First Amendment right to set their own rules and determine the terms of their association.  The Supreme Court has held over and over again that governmental interference with a private group’s membership requirements “may impair the ability of the original members to express only those views that brought them together.” [1]  In Roberts v. U.S. Jaycees, for example, the U.S. Supreme Court held that “[f]reedom of association therefore plainly presupposes a freedom not to associate.”[2]   The Supreme Court has also made clear that this freedom is at its zenith when it comes to political parties’ “right to choose their own standard-bearers.”[3]

Enter Judge Dalton’s $250.00 contribution to the Tennessee Democratic Party’s chief political rival.  Can she still run as a Democrat despite that donation, or is such a contribution grounds for disqualification?  If the TNDP would like to disqualify her—which it has no obligation to do—the answer is that Judge Dalton can absolutely be disqualified from running in the upcoming Democratic Primary.  Some Democrats (like the author, for instance), have also called for more robust enforcement of the Democratic Party brand to prevent people like Sheriff David Clarke from ruining it.  Whether the TNDP will act on the pending petition to disqualify Judge Dalton, however, is a different question entirely.

Tennessee law expressly provides—as it must—that “[a] party may require by rule that candidates for its nominations be bona fide members of the party.”  See Tenn. Code Ann. § 2-13-104.  Tennessee law also provides that the state executive committee of a political party “with which a primary candidate filed [a qualifying] petition” is empowered to “determine[] that the candidate is not qualified” and have him or her removed from the party’s primary ballot.  See Tenn. Code Ann. § 2-5-204(a).

In determining whether a candidate qualifies as a “bona fide” Democrat, the TNDP’s bylaws helpfully include a specific definition.  Specifically, they provide:

“A bona fide Democrat is defined as an individual whose record of public service, actions, accomplishment, public writings and/or public statements affirmatively demonstrates that he or she is faithful to the interests, welfare and success of the Democratic Party of the United States and of the State of Tennessee. The State Party or a county party may make exceptions to this rule for requesting individuals in the spirit of an inclusive and a growing Party.”

Whether Judge Dalton’s contribution to the Tennessee Republican Party indicates that she is not “faithful to the interests, welfare and success of the Democratic Party” is an unreviewable question that only the TNDP is equipped to answer.  If past is prologue, the TNDP is also unlikely to act on the challenge, in which case Judge Dalton would remain qualified to run as a Democrat.  As to whether the TNDP is permitted to disqualify her from doing so, however, the law is equally clear: it can.

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[1] Roberts v. U.S. Jaycees, 468 U.S. 609, 623, 104 S. Ct. 3244, 3252, 82 L. Ed. 2d 462 (1984).

[2] Id. (emphasis added).

[3] Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 453, 128 S. Ct. 1184, 1192, 170 L. Ed. 2d 151 (2008) (citing Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359, 117 S. Ct. 1364, 1370, 137 L. Ed. 2d 589 (1997)).

Sixth Circuit Upholds Vote On Amendment 1

In a decision issued earlier this morning, the U.S. Court of Appeals for the Sixth Circuit formally upheld Tennesseans’ 2014 vote to ratify Amendment 1 to the Tennessee Constitution.  The amendment provided that:

“Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.”

Following the referendum election—which Tennesseans supported by a margin of 53%-47% in a contest involving nearly 1.4 million voters—opponents of the amendment challenged the results of the election in federal court, arguing that state officials should have disqualified the votes of anyone who declined to vote in the Governor’s race.  The challengers’ claim was premised upon a reading of an inartfully drafted provision of Tennessee’s Constitution, which states that:

“[I]f the people shall approve and ratify such amendment or amendments by a
majority of all the citizens of the State voting for Governor, voting in their favor,
such amendment or amendments shall become a part of this Constitution.”

Although initially accepted by the now-vacated decision of the District Court, the challengers’ reading of the above provision had several critical problems.  Among them, the novel interpretation that they demanded had never previously been applied in any referendum election in Tennessee’s history.  Most importantly, however, as the Yes On 1 Committee argued in an amicus brief filed in the Sixth Circuit, the challengers’ position would have unconstitutionally caused “the votes of tens of thousands of qualified voters—as many as eighty thousand, by some estimates—[to] be subject to wholesale invalidation for no other reason than that the voters who cast them did not support any candidate for governor.”  The same deficiency was noted in an editorial penned by Daniel Horwitz, Yes On 1’s eventual election counsel, in a 2014 op ed published in the Tennessean.

The Sixth Circuit’s opinion held that for purposes of the federal lawsuit, a separate state court decision that had previously determined that all votes in a referendum election must be counted regardless of whether or not a voter had voted in the Governor’s race was entitled to preclusive effect.  In a footnote, however, the Sixth Circuit also explained that it would have reached the same conclusion independently, noting that:

“[P]laintiffs’ preferred reading of the text of Article XI, Section 3, while not implausible on its face, would be patently unreasonable in effect. Not only would their proposed construction—requiring a voter to vote for governor as a prerequisite to casting a valid vote on Amendment 1—contravene longstanding practice and pre-election instructions published to the public, and effectively nullify the votes of thousands of citizens; it would also conflict with another provision of the Tennessee Constitution. Article IV, Section 1 prohibits the imposition of any additional qualification to vote, beyond age, U.S. citizenship, state residency, and registration. To adopt plaintiffs’ proposed interpretation would be to run afoul of our obligation, in construing state law, “to avoid constitutional difficulty” when fairly possible.”

“The issues involved in this lawsuit had absolutely nothing to do with abortion,” said Daniel Horwitz, election counsel for the Yes On 1 Campaign. “Instead, this was a direct challenge to pro-life voters’ right to vote itself, and fortunately, the right to vote won. Anybody who cares about the integrity of the democratic process should be both gratified and reassured by this outcome.”

The Sixth Circuit’s decision in the case is available here.

Selected Case Documents:

Brief of the “Yes On 1” Campaign as Amicus Curiae

Sixth Circuit Opinion Reversing District Court

Sixth Circuit Order Denying En Banc Review

Selected Media Coverage:

-The Tennessean: Appeals court won’t reconsider Tennessee abortion measure decision

-Patch: Federal Court Denies Challenge To Tennessee Abortion Amendment

-Yes on 1: Yes on 1 Files State Court Motion on Behalf of Disenfranchised Voters

-The Tennessean: Amendment 1 plaintiffs on shaky legal ground

-The Tennessean: Appeals court upholds vote count on Tennessee abortion measure Amendment 1

-The Tennessean: Fate of Tennessee abortion measure Amendment 1 now up to appeals court

-Pro Life News: Tennessee: Pro-Life Win as Judge Says State Counted Votes Correctly on Amendment 1

-News Channel 5: Vote Counting For Tennessee Abortion Measure Argued In Federal Court

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Yes, you may legally vote in another party’s primary under Tennessee law.

By Daniel Horwitz:

It’s election season!  In addition to junk mail and jingles, if there’s anything that’s absolutely guaranteed to take place in Tennessee this time of year, it’s an unresolved dispute over whether or not it’s illegal to vote in another party’s primary election.  So is it?

According to the Bernie Sanders campaign, whether you’re a Democrat or not, voting in the Democratic primary is legal.  “Tennessee has open primaries.  Tennesseans can vote for Bernie Sanders regardless of their registered party,” his website declares.  In sharp contrast, however, during several past election cycles, others have taken a markedly different view.  In May 2014, for example, Maury County’s Election Commission formally censured one of its Democratic members for voting in the local Republican Primary.  “Contrary to many public pronouncements by various people, a party primary is not open to anyone to come and essentially make a mockery of the process,” proclaimed Commission member Jason Whatley.  “People who disagree with that are disagreeing with the law and they’re demonstrating a gross misunderstanding of what the law says.”[1]

Despite protestations from many in Commissioner Whatley’s camp, however, the reality of Tennessee law is quite different.  Specifically, unless your party membership has been formally challenged under an obscure procedure that is virtually never utilized, voting in the primary election of a party with which you are not typically affiliated is not illegal at all.  The reasons why, however, require considerable explanation.

In the election law world, the practice of voting in the primary election of a party with which a voter is not traditionally affiliated is known as “crossover voting.”  Alternately considered insidious or a laudable expansion of democracy depending on who is benefiting from it, voters frequently engage in crossover voting for any number of reasons.  For example, a Republican voter might be so disgusted with her party’s candidates in a particular election that she decides to affiliate with the Democratic Party for a single election cycle instead.  Other voters—particularly those who live in highly gerrymandered districts—might vote in an opposing party’s primary in order to exert meaningful influence (called “hedging”) in the ultimate selection of their representatives, given that the winner of the opposing party’s primary is likely—or, in many cases, guaranteed—to win the general election down the road.[2]  Alternatively, a Democratic voter might try to bolster his party’s chances of winning a general election by crossing over and voting for a weak Republican primary candidate who is comparatively less likely to prevail against his Democratic candidate of choice—a tactic known as “raiding.”[3]

With respect to this latter tactic, it’s worth noting that supporters of both parties have a rich history of organizing “crossover raiding” drives in an attempt to sabotage their opponents’ chances of winning a general election victory.  In 2012, for example, in an effort to bolster Rick Santorum’s chances of becoming the Republican nominee for President over Mitt Romney, liberal activist Markos Moulitsas generated national media attention by encouraging Democrats to crossover to the Republican Primary and vote for Santorum.[4]  Similarly, in 2008, conservative talk radio host Rush Limbaugh encouraged Republicans to crossover and vote for Hillary Clinton in their respective states’ Democratic primaries when then-Senator Barack Obama began surging ahead in the polls.[5]  Although neither of these efforts turned out to be effective, successful crossover raiding has been blamed for primary victories of candidates in any number of elections, including Presidential primary victories in Michigan by George Wallace, Jesse Jackson and John McCain.[6]  A successful crossover voting campaign was also given credit, in part, for the controversial 2008 primary victory of former Tennessee State Senator Rosalind Kurita over challenger Tim Barnes,[7] which was ultimately vacated under internal party procedures by the Tennessee Democratic Party.[8]

Unsurprisingly, in the roughly fifteen states where voters are not required to declare their party affiliation in order to vote in a particular party’s primary, crossover voting is simple, and it is unquestionably legal.  To crossover, a voter in such an “open primary” state need only show up on election day and ask to vote in her primary of choice.  The voter will then be given the opportunity to cast her vote in that party’s primary with no questions asked.

In other states, however, voters are prevented (or, at least, hindered) from engaging in crossover voting because the states hold “closed primaries.”  In closed primaries, only voters who are expressly affiliated with a particular party may vote in that party’s primary elections.  In several jurisdictions—Kentucky, for example—this affiliation requirement effectively eliminates crossover voting because in order to vote in a party’s primary, a voter must be pre-registered with the party long before voting begins.[9]  In other closed primary states, however—Iowa, for instance—the affiliation requirement is effectively meaningless, because voters are permitted to change their party affiliation up until and even on election day itself.[10]

Tennessee falls into the latter category—a technically closed primary state, but one in which the party affiliation requirement exists only in theory.  To start, Tennessee law does not impose any registration requirement on voters whatsoever.  In fact, there is no such thing as party registration in Tennessee.  Instead, the only affiliation requirement contained in Tennessee law is found in Tenn. Code Ann. § 2-7-115(b), which provides that:

“A registered voter is entitled to vote in a primary election . . .  if:

(1) The voter is a bona fide member of and affiliated with the political party in whose primary the voter seeks to vote; or

(2) At the time the voter seeks to vote, the voter declares allegiance to the political party in whose primary the voter seeks to vote and states that the voter intends to affiliate with that party.”

“A bona fide member” of a political party?  “Declares allegiance”?  What do these things even mean?  Additionally, who decides whether someone is a bona fide member of a political party or not?  And how are these requirements even enforced, anyway?

The broad answer to each of these questions is that it’s entirely up to the parties themselves.  Political parties are private organizations.  Accordingly, they enjoy an unquestioned First Amendment right to decide their own membership criteria and to exclude or include anyone they see fit.  See, e.g., Washington State Grange v. Washington State Republican Party, 128 S.Ct. 1184, 1188 (2008) (“a party’s right to exclude is central to its freedom of association.”); Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981) (“the freedom to associate for the common advancement of political beliefs necessarily presupposes the freedom to identify the people who constitute the association, and to limit the association to those people only.”) (internal quotation omitted); California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (“our cases vigorously affirm the special place the First Amendment reserves for, and the special protection it accords, the process by which a political party selects a standard bearer . . . .”) (internal quotations and alterations omitted).   As such, the definition of a “bona fide” member of a particular political party is left exclusively to political parties themselves.[11]

Notably, given this framework, it is also possible to be a bona fide member of both the Democratic Party and the Republican Party (or any other political party) at the same time.  In fact, although Tennessee law prohibits candidates from appearing on the ballot under two separate parties, history offers multiple examples of the same candidate being selected as the nominee of more than one party in the same election—a practice known as “electoral fusion.”  For example, in 1946, future U.S. Supreme Court Justice Earl Warren—who was then the incumbent Governor of California—became the only gubernatorial candidate in California’s history to win both the Republican and Democratic nominations for the state’s governorship.[12]  As such, the fact that a person is considered a “bona fide” Republican by the Tennessee Republican Party does not necessarily foreclose that person from being considered a “bona fide” Democrat by the Tennessee Democratic Party as well.  For precisely the same reason, there would be nothing untoward about a traditionally Republican voter seeking to vote in the Conservative Party’s primary, or a traditionally Democratic voter seeking to vote in the Green Party’s primary.

It is for these reasons that several public officials have erred so substantially in concluding that an individual who traditionally affiliates with one party cannot lawfully attempt to affiliate with another by voting in its primary.[13]  For one thing, public officials have absolutely no authority to determine party membership—only parties do.  For another, affiliating with one political party does not categorically preclude a voter from affiliating with another, since political parties are not necessarily incompatible with one another.  All contrary conclusions reflect a fundamental misunderstanding of the First Amendment as it applies to political parties’ freedom of association.

Enforcement of Bona Fide Party Membership

As noted, however, the Supreme Court has recognized that the First Amendment’s right to freedom of association affords political parties the right to exclude voters from voting in their primaries as well.  See, e.g., La Follette, 450 U.S. at 122 (“the inclusion of persons unaffiliated with a political party may seriously distort its collective decisions—thus impairing the party’s essential functions—and [] political parties may accordingly protect themselves from intrusion by those with adverse political principles.”) (internal quotation omitted).  Accordingly, any political party is well within its rights to exclude a voter from its membership, thus rendering the voter ineligible to participate in the party’s primary.

Under Tennessee law, however, the only mechanism for enforcing political parties’ right to exclude voters from participating in their primaries is found in Tenn. Code Ann. § 2-7-126, which provides that:

“A person offering to vote in a primary may . . . be challenged on the ground that the person is not qualified under § 2-7-115(b).  Such a challenge shall be disposed of under the procedure of §§ 2-7-123 — 2-7-125 by the judge or judges and the other election officials of the party in whose primary the voter applied to vote, with a total of three (3) to decide the challenge.”

In turn, the highly complicated (and practically useless[14]) procedure found in §§ 2-7-123 — 2-7-125 provides that:

“If any person’s right to vote is challenged by any other person present at the polling place, the judges shall present the challenge to the person and decide the challenge after administering the following oath to the challenged voter: “I swear (affirm) that I will give true answers to questions asked about my right to vote in the election I have applied to vote in.”  A person who refuses to take the oath may not vote.

. . . .

The judges may ask any question which is material to deciding the challenge and may put under oath and ask questions of such persons as they deem necessary to their decision. The judges shall ask the administrator of elections to check the original permanent registration records if the voter claims to be registered but has no duplicate permanent registration record.

. . . .

(a) If the judges determine unanimously that the person is not entitled to vote, the person shall vote by paper ballot and the person’s ballot shall be deposited in a sealed envelope marked “Rejected” with the person’s name, the reason for rejection, and the signatures of the judges written on it.

(b) If the judges do not agree unanimously to rejection, the person shall be permitted to vote as if unchallenged.”

Thus, in order to prevent a prospective voter from voting in a party’s primary, the voter must:

  1. Be recognized by a Party “challenger” before casting a vote;
  2. Be challenged on the spot; and
  3. Have that challenge adjudicated unanimously by three previously-appointed Party judges.[15]

Then—but only then—could it conceivably become illegal for a voter to attempt to vote in a particular party’s primary.[16]  For obvious reasons, however—namely, that it is impossible and economically infeasible to carry out party purity challenges across the state in primary elections during which several hundred thousand (or more) votes are often cast—this process simply does not occur in nature.  As such, in practice, nothing prevents a traditionally Democratic voter from voting in the Republican Party’s primary or vice versa.  Under Tennessee law, such a practice—whether pursued for nefarious reasons or otherwise—is perfectly legal unless and until the voter’s right to participate has specifically been challenged by a party official and formally adjudicated against her.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] This particular incident also prompted State Election Coordinator Mark Goins to send a threatening letter – illegally, in the author’s view – to all 475 county Election Commissioners indicating that “they will be subject to removal by the State Election Commission” if they vote in another party’s primary.  See Andy Sher, Tennessee’s county election commissioners can only vote in their party’s primary, Times Free Press (Jul. 28, 2014), http://www.timesfreepress.com/news/local/story/2014/jul/28/county-election-commissioners-can-only-vote-in/262916/.  At the time, at least one attorney spoke out against the policy to note – correctly, in the author’s view – that such a threat violated the First Amendment.  Id. (“the state’s new directive is already coming under fire from Chattanooga attorney Jerry Summers, a Democratic member on the Hamilton County Election Commission.  Summers said Saturday in an interview that he doesn’t believe the state’s order passes muster under federal guarantees of free speech and assembly under the U.S. Constitution.”).

[2] See, e.g., Eric Lyons, All’s fair in love and the Tennessee primaries, Vanderbilt Hustler (Sep. 3, 2012), available at http://www.vanderbilthustler.com/opinion/columns/article_043fd3c0-f572-11e1-9e29-0019bb30f31a.html?mode=jqm (“In northeast Tennessee, Republicans are all but guaranteed a victory come November, meaning that it is very often the case that the primary election is, for all intents and purposes, “the race,” as Lt. Governor Ramsey himself noted when asked for his stance on the primary question. For that reason, liberal voters who want to actually have some say in the election may do well to cross over in late summer to nominate a Republican candidate whose views align closer to their own.”).

[3] See, e.g., Seok-ju Cho and Insun Kang, Open primaries and crossover voting, Journal of Theoretical Politics (2014).

[4] Joseph B. White, Michigan: Inviting Crossover Voting?, The Wall Street Journal (Feb. 23, 2012), available at http://blogs.wsj.com/washwire/2012/02/23/michigan-inviting-crossover-voting.

[5] Aaron Blake, Michigan Democratic Party encourages crossover voting in GOP presidential primary,  The Washington Post (Feb. 22, 2012), available at https://www.washingtonpost.com/blogs/the-fix/post/michigan-democratic-party-encourages-crossover-voting-in-gop-presidential-primary/2012/02/22/gIQA1qjoTR_print.html.

[6] Id. 

[7] Jeff Woods, Devil Woman: Scorned by her own political party, Rosalind Kurita is defiant and determined, The Nashville Scene (Oct. 23, 2008), http://www.nashvillescene.com/nashville/devil-woman/Content?oid=1198631 (“Barnes contested the results, charging essentially that Republicans commandeered the Democratic primary by organizing a crossover campaign”); David J. Luciano, The flip side of the 9/13 Kurita/Barnes Executive Committee hearing, Clarksville Online (Sep. 17, 2008), http://www.clarksvilleonline.com/2008/09/17/the-flip-side-of-the-913-kuritabarnes-executive-committee-hearing/ (“It was proven that a significant [sic] higher number of voters who historically vote in Republican primaries switched over to vote in the Democratic primary in this election.  The suggestion is that Rosalind Kurita used her ties to Ron Ramsey, who had pledged openly to “help her in any way [he] could” to turn out Republican voters to vote for her in an attempt to maintain Republican leadership of the Senate.”).

[8] See Kurita v. State Primary Bd. of Tennessee Democratic Party, 2008 WL 4601574 (M.D. Tenn. Oct. 14, 2008) aff’d, 472 F. App’x 398 (6th Cir. 2012).

[9] Ky. Rev. Stat. Ann. § 116.055 (“Before a person shall be qualified to vote in a primary election, he shall possess all the qualifications required of voters in a regular election. In addition, he shall be a registered member of the party in whose primary election he seeks to vote, and shall have been registered as a member of that party on December 31 immediately preceding the primary election, or, in the case of new registrations made after December 31 immediately preceding the primary election, he shall have registered and remained registered as a member of that party. No person shall be allowed to vote for any party candidates or slates of candidates other than that of the party of which he is a registered member. The qualifications shall be determined as of the date of the primary, without regard to the qualifications or disqualifications as they may exist at the succeeding regular election, except that minors seventeen (17) years of age who will become eighteen (18) years of age on or before the day of the regular election shall be entitled to vote in the primary if otherwise qualified. However, any registered voter, whether registered as a member of a party, political organization, political group, or as an independent, shall be qualified to vote in primary elections for candidates listed in all nonpartisan races.”)

[10] Iowa Code Ann. § 43.42 (“Any registered voter may change or declare a party affiliation at the polls on election day and shall be entitled to vote at any primary election. Each voter doing so shall indicate the voter’s change or declaration of party affiliation on the voter’s declaration of eligibility affidavit.”).

[11] The Tennessee Democratic Party’s bylaws do not define a “bona fide” member, and they do not establish any affiliations requirements for prospective voters at all.  However, the TNDP’s bylaws do  expressly allow party members to bring a challenge to a candidate’s status as a bona fide Democrat on the basis that the candidate has “fail[ed] to vote in at least three of the immediate prior five Democratic primaries[.]”  See Bylaws of the Tennessee Democratic Executive Committee 2010, Article III, Section 2(l) (“In the event that a county party, in compliance with its Bylaws, challenges a candidate for any office be it local, county, state or federal, against appearing on the ballot as a Democrat for failing to vote in at least three of the immediate prior five Democratic primaries, the challenge shall be referred to the County Party Development Committee which shall by a simple majority vote of the members make a recommendation to the State Party Chair.”)  Similarly, the Tennessee Republican Party’s bylaws do not establish specific bona fide membership requirements for voters, but do include flexible affiliation standards for establishing the bona fide status of prospective Republican candidates.  See Bylaws of the Tennessee Republican Party, Article IX, Section 1-2.

[12] Richard Rodda, The not-always-accurate memoirs of Earl Warren, California Journal 378 (Nov. 1977), available at http://www.unz.org/Pub/CalJournal-1977nov-00378.

[13] Of course, Tennessee law requires voters to choose a single party with which to affiliate in each election.  See Tenn. Code Ann. § 2-19-107 (“A person commits a Class D felony who:  . . . (2) Votes in the primary elections of more than one (1) political party on the same day.”).

[14] See Green Party of Tennessee v. Hargett, 882 F. Supp. 2d 959, 1004 (M.D. Tenn. 2012) (“[A]t the time of voting, the voter can simply declare affiliation with the party to vote in [a Party’s] primary election.  Although a challenge to such a declaration is permitted under Tennessee law, given [Parties’] limited support and resources, . . . prospects for realistic challenges across the State at the time of the primary voting would be, at best, nominal.”); rev’d and remanded on mootness groundsGreen Party of Tennessee v. Hargett, 700 F.3d 816 (6th Cir. 2012).  See also  Eric Lyons, All’s fair in love and the Tennessee primaries, Vanderbilt Hustler (Sep. 3, 2012), available at http://www.vanderbilthustler.com/opinion/columns/article_043fd3c0-f572-11e1-9e29-0019bb30f31a.html?mode=jqm (observing that “election officials rarely enforce [the affiliation requirement] at the polls as it is not something they are prepared to deal with.”).

[15] Tenn. Code Ann. §§ 2-7-123 – 2-7-125.

[16] Tenn. Code Ann. § 2-19-107 provides that: “A person commits a Class D felony who: (1) Intentionally and knowing that such person is not entitled to, registers or votes in any manner or attempts to register or vote in any manner where or when such person is not entitled to under this title, including voting more than once in the same election.”

A Picture’s Worth A Thousand Words: Why Ballot Selfies Are Protected by the First Amendment

By Daniel A. Horwitz

[Author’s note:  After being posted, this article was accepted for publication in the Southern Methodist University, Dedman School of Law Science and Technology Law Review.  It is available at my SSRN author page here:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2704630.  The full citation is:  Daniel A. Horwitz, A Picture’s Worth A Thousand Words:  Why Ballot Selfies Are Protected By The First Amendment, 18 SMU Sci. & Tech. L. Rev. __ (2015).]

A Picture’s Worth A Thousand Words:  Why Ballot Selfies Are Protected By The First Amendment

On September 9, 2014, Andrew Langlois walked into his polling place disgusted with the candidates who were running for U.S. Senate in the New Hampshire Republican Primary.[1]   Rather than voting for one of the ten candidates who appeared on his ballot, Mr. Langlois instead decided to vote for “his recently-deceased dog, ‘Akira,’” whom he selected as a write-in candidate.[2]  Thereafter, Mr. Langlois whipped out his smartphone, snapped a photo of his completed ballot, and posted the photo to his Facebook page along with the caption: “Because all of the candidates SUCK, I did a write-in of Akira.”[3]

Unfortunately for Mr. Langlois, the election did not go his way.  To start, Akira failed to win the Republican Party’s nomination—instead, that honor went to former Massachusetts Senator Scott Brown, who went on to lose the general election to incumbent New Hampshire Senator Jeanne Shaheen.[4]  Adding insult to injury, Mr. Langlois also received a call from the New Hampshire Attorney General’s Office, which “explained that he was being investigated for posting his ballot on social media” in violation of a recently enacted New Hampshire law that prohibited “taking a digital image or photograph of [one’s] marked ballot and distributing or sharing the image via social media or by any other means.”[5]  New Hampshire, for its part, is not alone in prohibiting voters from photographing and sharing photographs of their marked ballots—which have since become known as “ballot selfies.”  In fact, according to a recent CBS report on the issue, “ballot selfies are against the law” in thirty-five states, and violators are frequently subject to being “punished with fines, invalidated ballots, or even jail time.”[6]

Along with two other voters who had posted photos of their ballots on social media during New Hampshire’s September 2014 primary election, Mr. Langlois took up the torch of New Hampshire’s “live free or die” tradition and sued his state in federal court.[7]  Along with State Representative Leon Rideout and first-time candidate Brandon Ross—both of whom had publicly memorialized their own candidacies by taking ballot selfies[8]—Mr. Langlois argued that New Hampshire’s ban on ballot photography abridged his rights to freedom of speech and freedom of expression in violation of the First Amendment to the United States Constitution.[9]  In an August 11, 2015, opinion, U.S. District Court Judge Paul Barbadoro agreed, holding that New Hampshire’s ballot selfie ban was “invalid because it is a content-based restriction on speech that cannot survive strict scrutiny.”[10]  A similar ruling from the U.S. District Court for the Southern District of Indiana quickly followed suit.[11]

Unexpectedly, Judge Barbadoro’s ruling quickly set off a firestorm in the election law world.  Within a week, U.C. Irvine Professor Rick Hasen had penned an article in Reuters entitled: Why the Selfie is a Threat to Democracy, in which he argued that Judge Barbadoro “made a huge mistake because without the ballot selfie ban, we could see the reemergence of the buying and selling of votes—and even potential coercion from employers, union bosses and others.”[12]  Of note, Professor Hasen was not alone in expressing these feuters entitled: istrict of Indiana quickly followed suit.   of State, et al., ve because they leave open sfy strict scruinty. ars.[13]  For example, according to Doug Chapin, director of the program for excellence in election administration at the University of Minnesota, “ballot selfies create a vulnerability in the election process that vastly outweighs any societal or personal benefit the selfie brings.”[14]

Despite the concerns expressed by authorities like Professor Hasen, Mr. Chapin and others, however, Judge Barbadoro was correct in holding that ballot selfies are protected by the First Amendment.  To begin, “as a general matter, ‘the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’”[15]  Because ballot selfie prohibitions forbid individuals from sharing one type of image—a photograph of a marked election ballot—but not other images, there is little doubt that such laws represent a content-based restriction on speech.[16]  As a result, such laws must satisfy an onerous legal standard known as “strict scrutiny.”[17]  To uphold a law under this standard, the government must prove that the challenged law is both narrowly tailored and the least-restrictive means available to further a compelling governmental interest.[18]  Unfortunately for proponents of ballot selfie bans, however, the Supreme Court has described strict scrutiny as a “well-nigh insurmountable burden,”[19] and vanishingly few laws can overcome it.  In particular, ballot selfie bans cannot satisfy strict scrutiny for three reasons.

First, assuming that preventing vote buying qualifies as a compelling governmental interest, ballot selfie bans are not narrowly tailored to achieve this objective.[20]  In particular, blanket prohibitions on ballot photography fail to satisfy strict scrutiny because they unnecessarily restrict a substantial amount of protected political speech while simultaneously doing nothing to prevent far simpler methods of vote buying.[21]  Second, the “compelling” nature of the government’s interest in enacting sweeping laws to guard against vote buying is subject to considerable doubt,[22] given that vote buying is so rare as to be statistically non-existent even in jurisdictions where it is theoretically easy to accomplish.[23]  Third, because in most cases voters have the ability to change their votes even after photographing their ballots,[24] a ballot selfie does not actually provide a would-be vote buyer any assurance that a voter has cast his or her ballot in a particular way—rendering the entire premise behind ballot photography prohibitions completely baseless.

This Article addresses each of these issues in turn.  Part I explains why prohibitions on ballot selfies are not narrowly tailored to accomplish their intended goal of prohibiting vote buying.  Part II addresses the governmental interests that purportedly justify ballot selfie prohibitions, and it explains why ballot selfie bans do not in fact address an “actual problem” that is in need of solving.  Part III expounds on these problems by explaining why ballot selfies do not even provide a would-be vote buyer any assurance that a voter has actually cast his or her ballot in a particular way, rendering the ballot selfie a valueless method of facilitating voter fraud.  Taken together, Part IV concludes that ballot selfies are a constitutionally protected form of political speech, and that the widespread efforts to prohibit their distribution cannot withstand constitutional scrutiny.

I. Prohibitions on Ballot Selfies Are Not Narrowly Tailored To Prohibit Vote buying

Adopting the mindset of the many legislators who have supported ballot selfie prohibitions, suppose that vote buying were a huge problem—as it unquestionably was back in the nineteenth and early twentieth centuries.[25]  Next, suppose that you were a legislator seeking to fix this problem.  Would prohibiting voters from photographing their ballots and distributing the images on social media do the trick?

The answer to this question, as Professor Hasen correctly argues, is yes—but only in part, and not even particularly well at that.[26]  Certainly, if vote buying were a problem, then a ballot selfie prohibition could theoretically derail a vote-buying arrangement in one instance:  a situation in which a voter is promised money to vote for a specific candidate, and the voter offers proof that he voted for that particular candidate by transmitting a photograph of his completed ballot.

But what about other types of vote-buying arrangements?  In particular, what about the simplest vote-buying arrangement of all—absentee ballot vote buying—which can be accomplished at home outside the comparatively well-surveilled setting of a polling place?[27]  In the 2004 presidential election, for example, more than one in every seven votes were cast by absentee ballot.[28]  Additionally, by 2012, twenty-seven states and Washington, D.C. offered voters “no-excuse” absentee voting, which allows any registered voter to vote by absentee ballot for any reason.[29]  Plainly, ballot selfie bans do nothing to curb this far simpler type of vote-buying fraud, which could theoretically affect several million ballots cast each year.

Further, what about the other possible vote-buying arrangements that take place inside a polling place?  Professor Hasen correctly notes that in the exceedingly rare instances in which vote buying does occur today, “it usually requires the cooperation of someone in the polling place to verify how people voted.”[30]  Ballot selfie bans, however, do nothing to root out such internal corruption.  Similarly, in virtually every jurisdiction in the United States, a voter who claims to be disabled is permitted to bring another person into the voting booth with him to help him cast his ballot.[31]  In fact, in Professor Hasen’s home state of California, not one but “two persons selected by the voter” can join such a voter inside the voting booth.[32]  Certainly, this kind of accommodation can be exploited by eager vote buyers just as easily as a vote-buying arrangement involving ballot selfies.  However, a ballot selfie ban accomplishes nothing in the way of preventing this potential avenue for vote buying, either.

Given these problems, ballot selfie prohibitions are substantially under-inclusive because they selectively preclude only one theoretical method of vote buying—ballot photography—while doing nothing to prevent far simpler methods of accomplishing the same result.  “Laws that are underinclusive,” however, “cannot be narrowly tailored” in keeping with strict scrutiny.[33]  As the Supreme Court has explained, “a law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction on [protected] speech, when it leaves appreciable damage to [a] supposedly vital interest unprohibited.”[34]  Thus, ballot selfie prohibitions are insufficiently protective to satisfy strict scrutiny’s narrow tailoring requirement.

Conversely, ballot selfie bans fail the constitutional “narrow tailoring” requirement in another way: they are substantially over-inclusive in what they prohibit.  Specifically, prohibitions on ballot photography and ballot photo sharing do not simply prevent fraudsters from transmitting photographed ballots for the purpose of vote buying.[35]  Instead, they prohibit all people from distributing photographed ballots for any purpose at all—regardless of whether or not they have a legitimate basis for doing so.[36]  Thus, ballot selfie bans similarly fail to satisfy strict scrutiny because they sweep within their net a great deal of protected political speech that is completely unrelated to the government’s interest in preventing vote buying.[37]

Without a doubt, by “ensnar[ing] a large number of voters wishing to make a political point or expressing their pride in voting or recording the moment for some innocuous personal reason,”[38] categorical prohibitions on sharing images of one’s ballot cast an unnecessarily wide net over protected and unprotected speech alike, rendering such laws fatal to any serious claim of “narrow tailoring.”[39]  As Gilles Bissonnette—the legal director of the ACLU of New Hampshire—has astutely quipped:  “The best way to combat vote buying and coercion is to investigate and prosecute cases of vote buying and coercion.”[40]

Furthermore, although election-related selfies have been criticized as a valueless “generational” phenomenon, the reality is that being able to distribute a photograph of one’s ballot truly does carry tremendous social value for several reasons.[41] First, ballot selfies frequently represent personal endorsements of candidates for public office, and political endorsements are indisputably protected by the First Amendment.[42]  As such—personal vanity aside—the ballot selfie represents a treasured and quintessentially protected form of core political speech, thus falling within a realm in which the Supreme Court has held repeatedly that “the First Amendment has its fullest and most urgent application,”[43] and where “the importance of First Amendment protections is at its zenith.”[44]

Furthermore, as any number of individuals have observed, “a lot of people like to take pictures of their ballot because they’re excited about voting and participating in the process.”[45]  For example, as ACLU of Indiana Legal Director Ken Falk has explained, “[t]aking a picture of one’s ballot and sharing it with family and friends is an expression of pride and enthusiasm about voting.”[46]  Consequently, proudly sharing one’s voting experience and political preferences on social media represents “a positive sign of civic engagement”[47] that should be welcomed and perhaps even encouraged in a political climate in which many voters—especially young voters—never vote at all.[48]  Similarly, as in the case of Mr. Langlois and others, a ballot selfie can also serve precisely the opposite purpose as well—offering a public and equally valuable expression of disgust with one’s voting options.[49]

Finally, freedom of expression notwithstanding, being able to photograph one’s ballot can also provide valuable information about malfunctioning ballot machines.[50]  For example, in 2012, a Perry County, Pennsylvania voter used his smartphone to record a widely disseminated video that demonstrated his voting machine switching his vote from Barack Obama to Mitt Romney.[51]  After election officials reviewed the voter’s video, the machine was promptly taken out of service.[52]  Notably, a non-trivial number of similar “vote-flipping” claims have also been alleged in recent years,[53] although such claims can often be viewed as self-serving, and actual proof of malfunctioning ballot machines has been rare.  Consequently, photographic evidence of a malfunctioning electronic ballot machine offers helpful, substantive proof that a machine is in fact malfunctioning, and it facilitates prompt replacement in the event that one is.  In this fashion, giving the public the right to document and expose such problems when they occur plainly enhances voter confidence in the integrity of the election process, rather than diminishing it.

In sum, even if vote buying were commonplace, ballot selfie bans have two substantial problems that render them unable to satisfy the Constitution’s “narrow tailoring” requirement.  Specifically, they are simultaneously both under-inclusive and over-inclusive, and thus, they are insufficiently narrowly tailored to achieve the government’s stated goal of preventing vote buying.[54]  In particular, ballot selfie bans are substantially under-inclusive in their protection because they do nothing to guard against far simpler means of vote buying, such as absentee vote buying.[55]  Simultaneously, ballot selfie bans are substantially over-inclusive in what they prohibit because they criminalize a vast amount of protected speech that is unnecessary to achieve the government’s purportedly compelling goal.[56]  For both of these reasons, blanket prohibitions on ballot selfies cannot satisfy strict scrutiny, and they violate the First Amendment as a result.

II. Vote buying Is Statistically Non-Existent

Stepping out of the world in which vote buying was assumed to be a problem that needed fixing, let us return to the real world:  one in which vote buying occurs with infinitesimal frequency, rendering the “compelling” nature of the government’s interest in enacting sweeping laws to guard against it subject to considerable doubt.  In addition to proving that a law abridging protected speech is narrowly tailored, in order to satisfy strict scrutiny in the context of the First Amendment, the government must also “specifically identify an ‘actual problem’ in need of solving, and the curtailment of free speech must be actually necessary to the solution.”[57]  Moreover, “[t]his burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on . . . speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.”[58]  With respect to vote buying, however, no “actual problem” exists, and for the reasons explained in Section III, prohibiting ballot selfies would not solve the problem even if one did.[59]

To be sure, as Professor Hasen argues and as Judge Barbadoro acknowledged, “[t]here is no doubt that vote buying and voter coercion were at one time significant problems in the United States.”[60]  Voters have not always voted by secret ballot throughout American history, which once made vote buying and voter coercion commonplace.[61] Indeed, around the turn of the twentieth century, political parties printed their own ballots in “flamboyant colors, distinctive designs, and emblems so that they could be recognized at a distance,” and they paraded people to the polls en masse in an effort to provide a coercive, conspicuous and public spectacle of voters’ ballot selections.[62]  Further, prior to the implementation of the secret ballot, approaching a polling place was often akin to “entering an open auction,” with rival political parties competing vigorously to bribe voters to accept their pre-printed ballots, and then paying them for their vote immediately after they had cast it.[63]  Practices like this resulted in an estimated incidence of vote buying of sixteen percent in Connecticut in 1892[64] and twenty percent in New York City in 1887,[65] which represents an almost unimaginably high degree of voter fraud.  Notably, as Professor Hasen explains, voter turnout also “went down as each state adopted the secret ballot,” lending additional support to the argument that vote buying and voter coercion were to blame.[66]

While there are crucial differences between the historical traditions that took place before the secret ballot was adopted and the voluntarily exposed ballot made possible today by personal ballot photography and social media photo sharing, there is also another historical development to consider:  today, vote buying effectively does not exist anywhere in the United States—even in the many jurisdictions where it is easy to accomplish.  As noted in Section I, for example, at present, a majority of states offer “no-excuse absentee voting,” meaning that anyone who wishes to do so is eligible to vote by mail.[67]  Despite the widespread availability of absentee voting in most U.S. jurisdictions, however, Oregon and Washington stand out in this regard. In these two states, voters are not only offered the option of absentee voting; instead, all Oregon and Washington elections are conducted by mail.[68]  Thus, if vote buying were a problem, then one would reasonably expect to find it in the Pacific Northwest.

Lowering expectations, Professor Hasen acknowledges that “[t]hese days in the United States, vote buying is relatively rare.”[69]  But exactly how rare?  For example, out of the more than 21.6 million combined absentee ballots that have been cast in Oregon primary and general elections since the state adopted universal vote-by-mail balloting in 1998,[70] what proportion have given rise to concerns about vote buying?  One percent?  One-tenth of one percent?  One one-hundredth of one percent?

According to the Oregon Secretary of State’s office, the answer is one.[71] Not one percent, mind you.  Instead, out of nearly twenty-two million absentee ballots that Oregon voters have cast in the past two decades,[72] there has been only a single demonstrated instance of attempted vote buying.[73]  For the sake of comparison, nearly three-dozen UFO sightings have occurred during the same time period,[74] and Owlcapone—Salem, Oregon’s merciless, hat-stealing attack owl—has terrorized at least four innocent joggers during the past year alone.[75]  Thus, as far as Oregon is concerned, “vote buying is relatively rare” indeed.[76]

Oregon is not alone, however.  In response to an identical public records request about vote buying in Washington state, for example, the Washington Secretary of State’s Office indicated that it could find no record of any vote-buying prosecution “in the last 15 years or more,” during which time more than twenty-five million absentee ballots were cast.[77]  And lest one be tempted to presume that Oregon and Washington are simply delinquent in investigating vote-buying schemes, it is worth noting that their experiences are in no way anomalous.  According to Judge Barbadoro’s opinion, for example, New Hampshire’s experience reflects the very same reality, as “there have been no vote buying prosecutions and no complaints of vote buying in the state since at least 1976.”[78]  Further, with respect to the specific concern of vote buying facilitated by ballot selfies, Indiana’s Attorney General was “unable to point to a single instance in which digital photography facilitated vote buying or selling, despite the fact that . . . approximately two-thirds of Americans own and/or use a smartphone with a camera and approximately three-quarters of Americans participate in some type of social media website.”[79]  The dearth of vote-buying prosecutions anywhere else in the United States further confirms this pattern.[80]  Thus, despite the occasional “isolated and anachronistic” instance of vote buying in one jurisdiction or another,[81] statistically speaking, vote buying is non-existent.

III. Ballot Selfies Generally Do not Reflect a Completed Ballot

Finally, setting aside the many concerns expressed above, suppose that vote buying were both a serious problem and that prohibiting voters from photographing their completed ballots would be an effective way to address it.  What then?  Would the nation’s many ballot selfie bans finally be able to survive strict scrutiny?

Unfortunately for proponents of such measures, the answer is still no, and for a simple reason:  as a matter of practical reality, ballot selfies do not actually reflect a completed ballot.  Thus, rather than equipping a voter with “the tools to sell [his or her] vote” or making it possible for a voter to “get forced to vote one way or another,” as Professor Hasen contends, in practice, permitting ballot selfies does no such thing.[82]

In most jurisdictions, regardless of whether a ballot is marked electronically or by hand, a voter’s “completed” ballot is still subject to alteration before it is formally cast.[83]  In jurisdictions that use electronic ballots, for example, the electronic balloting software generally permits a voter to return to any portion of his or her ballot and to change any prior selection before the ballot is submitted.[84]   Similarly, in paper ballot jurisdictions, a voter who snaps a selfie of a marked ballot can generally request a new ballot or intentionally “spoil” the ballot—for example, by selecting two people for the same office—in order to be entitled to a new one.[85]

Given this reality, anybody who is interested in vote buying gains nothing in the way of actual verification by reviewing a ballot selfie—which is self-evidently a prerequisite to the effectiveness of such a scheme.  It is true that a ballot selfie reflects that a voter marked her ballot in a certain way at the moment the photo was taken.  But was the ballot altered thereafter?  Only the voter herself can answer this question, rendering any such vote-buying strategy valueless.

To illustrate this problem in practice, below are a pair of ballot selfies that I snapped while voting in the September 10, 2015, Metropolitan runoff election held in Nashville, Tennessee.  Plainly, based on these photos, attempting to figure out whom I supported for Mayor is not possible. The first photo reflects a vote for mayoral candidate David Fox.  The second photo reflects a vote for mayoral candidate Megan Barry.  The third photo reflects the final page that appears before one’s ballot is actually counted, and it permits voters to select a “Return to ballot” button and to change a selection in any contest before the ballot is formally cast.  Notably, this final page does not contain any information about my ballot selections whatsoever.

Ballot Selfie 1 Ballot Selfie 2 Ballot Selfie 3

 

The same is true of photographed paper ballots.  Like snapshots of an electronic ballot, a photograph of a paper ballot reflects that a voter marked her ballot in a certain way only at the moment the photo was taken—rather than documenting a vote that was actually cast.[86]  If a voter wants to switch one of her votes or makes a mistake, however, then the voter may simply request a new ballot and begin again.[87]  For example, sticking with Tennessee, the applicable section of the state election code provides that “[i]f any voter spoils a paper ballot, the voter may obtain others, one (1) at a time, not exceeding three (3) in all, upon returning each spoiled one.”[88]  Thus, with respect to paper ballots, too, a ballot selfie does not provide a would-be vote buyer any assurance that a voter has actually cast his or her ballot in a particular way, rendering any such scheme ineffectual.

IV. Conclusion

In sum, laws that prohibit ballot photography and distribution represent content-based restrictions on core political speech, and states’ widespread efforts to prohibit ballot selfies cannot withstand constitutional scrutiny.  The problems with such prohibitions are multifaceted.  First, ballot selfie prohibitions are not narrowly tailored because they unnecessarily restrict a substantial amount of protected speech while simultaneously doing nothing to prevent far simpler forms of vote buying.  Second, the government’s purportedly compelling need to prohibit personal ballot photography in order to prevent vote buying is highly questionable in light of the fact that vote buying is statistically non-existent even in jurisdictions where it is easy to accomplish.  Third, because voters generally have the ability to change their votes after photographing their ballot selections, ballot selfies represent a useless tool for promoting vote buying anyway—rendering the entire premise behind such laws baseless.

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[1]. Rideout v. Gardner, No. 14-CV-489-PB, 2015 WL 4743731, at *7 (D.N.H. Aug. 11, 2015).

[2]. Id.

[3]. Id.

[4]. Full 2014 primary election results in New Hampshire, WMUR Manchester (Sept. 9, 2014, 12:00 AM), www.wmur.com/politics/full-primary-election-results-in-new-hampshire/27883790; Senate: New Hampshire (Shaheen vs Brown), CNN Politics (Nov. 5, 2014, 3:28 PM), www.cnn.com/election/2014/results/state/NH/senate.

[5]. N.H. Rev. Stat. Ann. § 659:35 (2014); Rideout, 2015 WL 4743731, at *7.

[6]. Illegal voter “ballot selfies” flood social media (CBS This Morning broadcast Nov. 5, 2014), http://www.cbsnews.com/videos/illegal-voter-ballot-selfies-flood-social-media.  Notably, however, some states have taken the opposite approach.  For example, ballot selfies are expressly permitted in Arizona and Utah.  See Ariz. Rev. Stat. Ann. § 16-1018(4) (Supp. 2015) (West) (“A voter who makes available an image of the voter’s own ballot by posting on the internet or in some other electronic medium is deemed to have consented to retransmittal of that image and that retransmittal does not constitute a violation of this section.”); Utah Code Ann. § 20A-3-504(3) (West Supp. 2015) (“Subsection (1) does not prohibit an individual from transferring a photograph of the individual’s own ballot in a manner that allows the photograph to be viewed by the individual or another.”).

[7]. Erik Eckholm, Selfies in Voting Booths Raise Legal Questions on Speech and Secrecy, N. Y. Times (Aug. 24, 2015), www.nytimes.com/2015/08/25/us/selfies-in-voting-booths-raise-legal-questions-on-speech-and-secrecy.html?_r=0.

[8]. Kristen Carosa, Lawsuit challenges law forbidding posting pics of ballots, WMUR Manchester (Oct. 31, 2014, 10:52 PM), http://www.wmur.com/politics/lawsuit-challenges-law-forbidding-posting-pics-of-ballots/29466942

[9]. Rideout, 2015 WL 4743731, at *8.

[10]. Id. at *1.

[11]. Order Granting Preliminary Injunction, Ind. Civil Liberties Union Found. v. Ind. Sec’y of State, et al., No. 1:15-cv-01356-SEB-DML (S.D. Ind. Oct. 19, 2015), http://www.aclu-in.org/images/newsReleases/DECISION_1_15-cv-1356-SEB-DML_ICLU_v_IN_SOS_10-19-2015.pdf.

[12]. Richard L. Hasen, Why the Selfie is a Threat to Democracy, Reuters (Aug. 18, 2015, 8:47 PM), blogs.reuters.com/great-debate/2015/08/17/why-the-selfie-is-a-threat-to-democracy/.

[13]. Eckholm, supra note 7; see also Donna Ballman, Why Ballot Selfies Are A Terrible Idea For Workers, Lexis Nexis Legal Newsroom (Aug. 31. 2015, 11:33 AM), http://www.lexisnexis.com/legalnewsroom/labor-employment/b/labor-employment-top-blogs/archive/2015/08/31/why-ballot-selfies-are-a-terrible-idea-for-workers.aspx.

[14]. Id.

[15]. Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65 (1983) (quoting Police Department v. Mosley, 408 U.S. 92, 95 (1972)).

[16]. See, e.g., Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2227 (2015) (“Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.”); see also Rideout v. Gardner, No. 14-CV-489-PB, 2015 WL 4743731, at *9 (D.N.H. Aug. 11, 2015) (“the law under review is content based on its face because it restricts speech on the basis of its subject matter. The only digital or photographic images that are barred . . . are images of marked ballots that are intended to disclose how a voter has voted. Images of unmarked ballots and facsimile ballots may be shared with others without restriction. In fact, the law does not restrict any person from sharing any other kinds of images with anyone.”); Order Granting Preliminary Injunction, supra note 11, at 6  (holding that, because Indiana’s ballot selfie prohibition “clearly defines the regulated expression according to its subject matter and its purpose, it is properly construed as being content based ‘on its face.’”).

[17]. See Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2738 (2011).

[18]. See, e.g., Sable Commc’ns of California, Inc. v. F.C.C., 492 U.S. 115, 126 (1989) (“The Government may . . . regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest.”); Brown, 131 S. Ct. at 2738 (“Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest.”).

[19]. Meyer v. Grant, 486 U.S. 414, 425 (1988).

[20]. See Brown, 131 S. Ct. at 2738.

[21]. See id.

[22]. See id.

[23]. See generally, Rideout v. Gardner, No. 14-CV-489-PB, 2015 WL 4743731, at *4–6 (D.N.H. Aug. 11, 2015) (providing an overview on vote buying throughout American history and how it has become close to obsolete in modern voting).

[24]. See e.g., Me. Rev. Stat. tit. 21-A, § 693 (1964); Ark. Code Ann. § 7-5-604 (2011); W. Va. Code § 3-4A-9 (2015).

[25]. See Rideout, 2015 WL 4743731, at *4–5.

[26]. See Hasen, supra note 10.

[27]. Sarah Jane Capper & Michael Ciaglo, The Real Vote-Fraud Opportunity Has Arrived: Casting Your Ballot by Mail, NBC News (Sept. 25, 2012, 7:13 AM) http://investigations.nbcnews.com/_news/2012/09/25/14092264-the-real-vote-fraud-opportunity-has-arrived-casting-your-ballot-by-mail (“[V]ote buying and bribery could occur more easily with mail voting and absentee voting. . . . A person who bribes mail voters could watch as they mark ballots or even mark ballots for them.”).

[28]. John C. Fortier, Absentee and Early Voting: Trends, Promises, and Perils, Am. Enter. Inst. 22–23 (2006), http://www.aei.org/wp-content/uploads/2014/06/-absentee-and-early-voting_155531845547.pdf (“Over 123 million votes were cast in the 2004 general election. Of those, nearly 18 million, or 14.5 percent, were cast absentee.”).

[29]. Capper & Ciaglo, supra note 26.

[30]. Hasen, supra note 10.

[31]. See e.g., Tex. Elec. Ann. § 64.031 (West 2015); Tenn. Code Ann. § 2-7-116 (2014); Mont. Code Ann. § 13-13-119 (2015).

[32]. Cal. Elec. Code § 14282 (West 2015) (“When a voter declares under oath, administered by any member of the precinct board at the time the voter appears at the polling place to vote, that the voter is then unable to mark a ballot, the voter shall receive the assistance of not more than two persons selected by the voter, other than the voter’s employer, an agent of the voter’s employer, or an officer or agent of the union of which the voter is a member.”).

[33]. Rosemond v. Markham, No. CV 13-42-GFVT, 2015 WL 5769091, at *9 (E.D. Ky. Sept. 30, 2015).

[34]. Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2232 (2015) (quoting Republican Party of Minn. v. White, 536 U.S. 765, 780 (2002)) (internal quotation marks omitted).

[35]. See Rideout v. Gardner, No. 14-CV-489-PB, 2015 WL 4743731, at *14 (D.N.H. Aug. 11, 2015).

[36]. See e.g., N.H. Rev. Stat. Ann. § 659:35 (2014).

[37]. See Rideout, 2015 WL 4743731 at *15.

[38]. Order Granting Preliminary Injunction, supra note 11, at 14.

[39]. Id.; see also Rideout, 2015 WL 4743731 at *14 (“In the present case, the state has an obviously less restrictive way to address any concern that images of completed ballots will be used to facilitate vote buying and voter coercion: it can simply make it unlawful to use an image of a completed ballot in connection with vote buying and voter coercion schemes.”).

[40]. Eckholm, supra note 7.

[41]. See generally Eu v. San Fransisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 223 (1989).

[42]. Id. at 223.

[43]. Id. (quotation omitted).

[44]. Meyer, 486 U.S. at 425 (quotation omitted).

[45]. Zach Pluhacek, No Ballot ‘Selfies’ in Nebraska, Secretary of State Says, Journal Star (Sept. 4, 2015), http://journalstar.com/news/state-and-regional/nebraska/no-ballot-selfies-in-nebraska-secretary-of-state-says/article_a6a74c18-5f98-5794-b852-e1d21de53b4b.html?mobile_touch=true (“A lot of people like to take pictures of their ballot because they’re excited about voting and participating in the process.”).

[46]. ACLU of Indiana Challenges State Law Prohibiting Ballot “Selfies”, Am. Civil Liberties Union (Aug. 27, 2015), https://www.aclu.org/news/aclu-indiana-challenges-state-law-prohibiting-ballot-selfies; see also Pluhacek, supra note 36.  See also http://www.indystar.com/story/opinion/2015/10/26/downs-ballot-selfies-unlikely-corrupt-democracy/74631244/ (“Voters who want to take and share photos of their ballots are showing support for candidates and trying to influence people in their social media networks.”).

[47]. Jack Morse, That ‘Ballot Selfie’ You Just Posted? Yeah, That’s Illegal., SFIST (Nov. 3, 2015, 1:05 PM), http://sfist.com/2015/11/03/that_ballot_selfie_you_just_posted.php (“Assemblyman Marc Levine of San Rafael believes that ‘ballot selfies,’ as they’re (I guess?) called, are a positive sign of civic engagement and should be encouraged.”).

[48]. See Youth Voting, Circle, http://www.civicyouth.org/quick-facts/youth-voting/ (last visited Oct. 18, 2015); see also Jack McElroy, Stand up for freedom; take a ballot selfie, Knoxville News Sentinel (Sept. 13, 2015, 3:00 AM), http://www.knoxnews.com/opinion/columnists/jack-mcelroy-stand-up-for-freedom-take-a-ballot-selfie_77697777 (“It is hard to see what the actual or imminent problem is in Tennessee, either, when a first-time teenage voter, or a newly sworn American, or a get-out-the-vote campaigner or any other citizen proudly and publicly documents the fulfillment of their civic duty.  What we need these days are more ballot selfies, a lot more—not a ban to stomp out a problem that doesn’t exist.”).

[49]. Rideout v. Gardner, No. 14-CV-489-PB, 2015 WL 4743731, at *7 (D.N.H. Aug. 11, 2015).

[50]. See, e.g., Richard Locker, Bill Nearing Approval Would Ban Cellphone Pictures, Video at Polling Places, The Commercial Appeal (Apr. 7, 2015, 7:55PM), http://www.commercialappeal.com/news/state/bill-nearing-approval-would-ban-cellphone-pictures-video-at-polling-places_04827022 (quoting a state Representative as saying, “In Davidson County two years ago after the election, the state election coordinator put out a 20-page report on all the improprieties that happened in that election and a lot of that we were able to document using phones and video.”).

[51]. 2012 Voting Machines Alerting Votes, YouTube (Nov. 6, 2012), https://www.youtube.com/watch?v=QdpGd74DrBM.

[52]. Jaikumar Vijayan, E-voting machine swaps Obama vote for Romney; taken offline, Computerworld (Nov. 6, 2012, 3:30PM), http://www.computerworld.com/article/2493314/government-it/e-voting-machine-swaps-obama-vote-for-romney–taken-offline.html.

[53]. Voting Machine Switching GOP Votes to Democrat in Illinois, YouTube (Oct. 23, 2014) https://www.youtube.com/watch?v=8Pi0whC2nK4; see also Alanna Autler, Voters Report Issues at Maury County Polls, WSMV-TV Nashville (Nov. 6, 2014, 9:35 PM), http://www.wsmv.com/story/26880035/voters-report-issues-at-maury-county-polls; see also Nick Bechtel, Voting Machine Swaps Romney for Obama, Marion Star (Oct. 31, 2012, 6:51 AM), http://www.marionstar.com/article/20121031/NEWS03/310310009.

[54]. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 578 (1993) (“A State may no more create an underinclusive statute, one that fails truly to promote its purported compelling interest, than it may create an overinclusive statute, one that encompasses more protected conduct than necessary to achieve its goal.”).

[55]. Rideout v. Gardner, No. 14-CV-489-PB, 2015 WL 4743731, at *14 (D.N.H. Aug. 11, 2015).

[56]. Proponents of ballot selfie bans are likely to take issue with this assertion by contending that such bans are necessary to further the government’s interest in preventing even the possibility of vote buying or voter coercion.  As noted in Section III, however, the bans do not do that.

[57]. Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2738 (2011) (quoting United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 822–23 (2000); see also United States v. Alvarez, 132 S. Ct. 2537, 2549 (2012) (“The First Amendment requires that the Government’s chosen restriction on the speech at issue be ‘actually necessary’ to achieve its interest.”); Consol.  Edison Co. of N. Y. v. Pub. Serv. Comm’n of N. Y., 447 U.S. 530, 543 (1980) (“Mere speculation of harm does not constitute a compelling state interest.”).

[58] Edenfield v. Fane, 507 U.S. 761, 771 (1993).

[59]. Hasen, supra note 10 (“These days in the United States, vote buying is relatively rare.”).

[60]. Rideout, 2015 WL 4743731, at *4 (citing Doe v. Reed, 561 U.S. 186, 226 (2010) (Scalia, J., concurring) (citing Burson v. Freeman, 504 U.S. 191, 202 (1992) (plurality opinion))); see also Susan C. Stokes et al., Brokers, Voters, and Clientelism: The Puzzle of Distributive Politics 200 (2013); Richard Hasen, Vote Buying, 88 Cal. L.Rev. 1323, 1327 (2000); Jill Lepore, Rock, Paper, Scissors: How We Used To Vote, New Yorker (Oct. 13, 2008), http:// www.newyorker.com/magazine/ 2008/10/13/rock-paper-scissors.

[61]. See generally Burson, 504 U.S. at 200–01 (“Wishing to gain influence, political parties began to produce their own ballots for voters. These ballots were often printed with flamboyant colors, distinctive designs, and emblems so that they could be recognized at a distance. State attempts to standardize the ballots were easily thwarted—the vote buyer could simply place a ballot in the hands of the bribed voter and watch until he placed it in the polling box. Thus, the evils associated with the earlier viva voce system reinfected the election process; the failure of the law to secure secrecy opened the door to bribery and intimidation.”).

[62]. Id. at 200.

[63]. Id. at 202.

[64]. Rideout v. Gardner, No. 14-CV-489-PB, 2015 WL 4743731, at *4 (D.N.H. Aug. 11, 2015) (citing L.E. Fredman, The Australian Ballot: The Story of an American Reform 22 (1968)).

[65]. Id. (citing Stokes et al., supra note 53, at 227).

[66]. Hasen, supra note 10.

[67]. Capper & Ciaglo, supra note 25.

[68]. Id.

[69]. See Hasen, supra note 10.

[70]. Voter Turnout History for General Elections, Or. Sec’y of State, http://sos.oregon.gov/elections/Documents/Voter_Turnout_History_General_Election.pdf; Voter Turnout History for Primary Elections, Or. Sec’y of State, http://sos.oregon.gov/elections/Documents/Voter-Turnout-History-Primary.pdf.

[71]. E-mail from Tony Green, Commc’ns Dir., Or. Sec’y of State, to author (Aug. 31, 2015, 6:27 PM) (on file with author).

[72]. Election Statistics, Or. Sec’y of State, http://sos.oregon.gov/elections/Pages/electionsstatistics.aspx.Of note, this number does not even include local elections that are held in May and November of odd-numbered years or Special elections. Id.

[73]. E-mail from Tony Green, supra note 71.

[74]. List of Reported UFO Citings, Wikipedia, https://en.wikipedia.org/wiki/List_of_reported_UFO_sightings (last visited Sept. 1, 2015, at 4:14 PM).

[75]. Hat-Stealing Attack Owl In Oregon Officially Named ‘Owlcapone’, The Huffington Post (Feb. 13, 2015, 9:59AM), http://www.huffingtonpost.com/2015/02/13/owl-attacks-owlcapone-oregon-name_n_6677410.html.

[76]. Hasen, supra note 12.

[77]. E-mail from Brenda Galarza, Pub. Records Officer, Wash. Sec’y of State, to author (Sept. 2, 2015, 11:32 AM) (on file with author); e-mail and attached Excel spreadsheet from Brenda Galarza, Pub. Records Officer, Wash. Sec’y of State, to author (Sept. 3, 2015, 3:29 PM) (on file with author).

[78]. Rideout v. Gardner, No. 14-CV-489-PB, 2015 WL 4743731, at *12 (D.N.H. Aug. 11, 2015).

[79]. Order Granting Preliminary Injunction, supra note 11, at 13–14..

[80]. See id. at *6.

[81]. Id. (citing Stokes et al., supra note 53, at 231); see also United States v. Thomas, 510 F.3d 714, 717 (7th Cir. 2007); United States v. Shatley, 448 F.3d 264, 265 (4th Cir. 2006); United States v. Johnson, No. 5:11–cr–143, 2012 WL 3610254, at *1 (E. D. Ky. Aug. 21, 2012).

[82]. Hasen, supra note 10.

[83]. See, e.g., Ark. Code Ann. § 7-5-604(4) (2011); 10 Ill. Comp. Stat. 5 / 17-16 (2010); Me. Rev. Stat. tit. 21-A, § 693 (1964); W. Va. Code § 3-4A-9(5) (2015).

[84]. See, e.g., Ark. Code Ann. § 7-5-604(4); W. Va. Code § 3-4A-9(5).

[85]. See, e.g., 10 Ill. Comp. Stat. 5 / 17-16; Me. Rev. Stat. tit. 21-A, § 693.

[86] Andrew Downs, Ballot selfies unlikely to corrupt democracy, IndyStar (Oct. 26, 2015, 1:13 PM), http://www.indystar.com/story/opinion/2015/10/26/downs-ballot-selfies-unlikely-corrupt-democracy/74631244/ (“For vote buying purposes, a photo of a ballot may seem better than a distinguishing mark on a paper ballot, but it is not. A voter could mark the ballot, take the picture and then change the vote. I suspect that there is limited honor among vote buyers.”).

[87]. See, e.g., 10 Ill. Comp. Stat. 5 / 17-16; Me. Rev. Stat. tit. 21-A, § 693.

[88]. Tenn. Code Ann. § 2-7-120 (2014).