Nashville, Tennessee, March 13, 2017—In response to a lawsuit filed by Dustin Owens after he was cited for displaying what his arresting officer claimed was an “obscene bumper sticker,” lawyers for the Metropolitan Nashville Police Department have conceded that “Mr. Owens is correct that the bumper sticker at issue does not fit the criteria of ‘obscene and patently offensive’ as those terms are defined in Tenn. Code Ann. § 55-8-187 and under relevant First Amendment jurisprudence.” As a result, Metro has agreed to dismiss Mr. Owens’ citation, and it will also submit to a declaratory judgment that the bumper sticker at issue “is protected by the First Amendment to the U.S. Constitution.” Under the parties’ settlement agreement, Metro will also pay for the costs of Mr. Owens’ lawsuit.
Mr. Owens’ resounding legal victory comes after extensive local and national media coverage of his arrest for displaying the following crass but comical bumper sticker:
Said Daniel Horwitz, Mr. Owens’ lead counsel: “The statute under which Mr. Owens was cited is facially unconstitutional. Hard-core censorship of this nature also has no place in a free society. We’re ecstatic about this victory, and we appreciate Metro’s prompt concession that the position taken by Mr. Owens’ arresting officer was nakedly meritless.”
Added David L. Hudson, Jr., who also represented Mr. Owens in the lawsuit: “Mr. Owens’ bumper sticker is clearly protected speech, a form of parody, and not remotely close to obscenity. I applaud Dustin’s courage in challenging his unconstitutional citation, and I am proud to have represented him.”
Mr. Owens’ Complaint against the MNPD and his Application for a Temporary Injunction are available here and here, respectively. The individuals referenced in this release will be available for further comment at [email protected] and [email protected] once the parties’ settlement agreement has been approved by the Court.
Selected media coverage regarding the case is available at the following links:
Demonstrating his laudable commitment to participating in the political process and encouraging others to do so as well, international music sensation and Memphis-bred popstar Justin Timberlake recently posted an instragram photo of himself rocking the (early) vote at his polling place in Memphis, Tennessee. That terrible offense, unfortunately, has earned him a rebuke from the Shelby County District Attorney’s office, which is currently conducting a criminal investigation into his scandalous conduct. The reason? Tennessee’s poorly-worded “Use of Mobile Electronic and Communication Devices at Polling Place for Informational Purposes” statute, codified at Tenn. Code Ann. § 2-7-142(b), which provides that:
“Any voter using a mobile electronic or communication device . . . shall be prohibited from using the device for telephone conversations, recording, or taking photographs or videos while inside the polling place.”
Violating this provision is theoretically a Class C misdemeanor punishable by up to 30 days in jail and a $50.00 fine. The law, however, is unconstitutional.
The practice of taking “ballot selfies” – photographs of one’s ballot that may or may not also include the voter – has become increasingly popular among voters in recent years. Celebrities from Beyoncé to Sean Hannity to Kim Kardashian have also gotten in on the action. Unfortunately, however, the celebratory practice of posting ballot selfies – which should be welcomed and perhaps even encouraged in a political climate in which many voters, especially young voters, never vote at all – has also drawn the attention of overzealous state regulators. During the November 2014 election, for instance, “approximately 35 states prohibited ballot selfies in one form or another,” and several states – Tennessee among them – “have since followed suit.”
Three main reasons, detailed extensively in this article, support the conclusion that ballot selfies may not lawfully be prohibited without violating the First Amendment.
First, ballot selfie bans unnecessarily restrict a substantial amount of constitutionally protected speech (like Mr. Timberlake’s) that is completely unrelated to vote buying, while simultaneously doing nothing to prevent far simpler forms of vote buying, such as absentee ballot fraud (which can be accomplished outside of the comparatively well-surveilled atmosphere of a polling place).
Second, the “compelling” nature of the Government’s interest in enacting broad-based laws to guard against vote buying is subject to considerable doubt, because vote buying is statistically non-existent even in jurisdictions where it is easy to accomplish.
Third, and most importantly, because voters have the ability to change their vote even after taking a ballot selfie, ballot selfies are a useless tool for promoting vote buying anyway—rendering the entire premise behind such laws baseless. That reality is exposed, for example, by this set of pictures (click on the photo to enhance it) that the author took during the 2015 Nashville mayoral election, which collectively illustrate just how easy it is to change one’s vote after making an initial selection:
In other words, because ballot selfies do not provide a prospective vote-buyer any level of certainty that a ballot has actually been cast in a particular way (an absolute prerequisite to any effective vote-buying scheme), ballot selfies are a useless tool for committing fraud, and banning them serves to do nothing but interfere with the political speech of innocent voters who want to do nothing more than celebrate the fact that they voted.
In sum: Justin Timberlake should be applauded for his activism and his decision to celebrate the right to vote, which is fully protected by the First Amendment. As such, today – like most days – JT’s an American hero.
Update, 5:07 PM: To the surprise of nobody, Justin Timberlake’s prosecution for violating Tennessee’s ballot selfie ban won’t go forward.
News Channel 2 viewers were treated to a fun story last night about the free speech rights of public employees. According to the segment, Nashville District Fire Chief Tim Lankford was recently disciplined for controversial, conservative-leaning statements that he made on his facebook page, which were perceived by his employer as being “racial, stereotypical, and threatening toward members of the public.” The statements included posts such as: “The first man who goes into the restroom with my daughter won’t have to worry about the surgery,” as well as a diatribe about the Supreme Court’s marriage equality ruling that concluded with Chief Lankford stating that he was “so disturbed” by the opinion that he could “barely function at his job.” Chief Lankford’s discipline also comes on the heels of independent sanctions being levied against two local police officers and a Sherriff’s deputy for statements made on facebook about the military lifting its ban on transgender service members and about the Black Lives Matter movement. All of which led News Channel 2’s reporter to wonder: Can public employees be disciplined for their speech without running afoul of the First Amendment?
Last night’s segment does not explore the applicable First Amendment doctrine in detail, but the short answer is “sometimes.” Sadly, for most of the 20th century, public employers had an unfettered right to take adverse employment actions against public employees for their speech whether it was expressed inside or outside of the workplace. Specifically, the Court’s thinking went: “A policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”[1]
Happily, though – at least for those of us who believe that more speech contributes to a better democracy – the Supreme Court eventually decided to change course. In a series of cases beginning with the Court’s 1968 decision in Pickering v. Board of Education, the Court aimed to strike a balance “between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[2] Approximately four decades of tweaking later, following the Supreme Court’s contentious 2006 decision in Garcetti v. Ceballos,[3] the current state of the doctrine is as follows:
Determining whether a public employee’s First Amendment rights have been violated currently requires a three-part inquiry.
First, to be protected, the employee’s speech must address a matter of public concern, rather than a purely private matter.[4] “Matters of public concern include speech that ‘relat[es] to any matter of political, social, or other concern to the community.’”[5] This requirement is broadly construed, so in addition to encompassing commentary on political issues writ large,[6] “speech falling into this category includes informing the public that a governmental entity failed to discharge its governmental responsibilities or bringing to light actual or potential wrongdoing or breach of public trust on the part of a governmental entity or any officials therein.”[7]
Second, the employee must also have been speaking as a private citizen, rather than speaking pursuant to his or her official job responsibilities. “When public employees make statements pursuant to their official duties,” the Supreme Court has explained, “employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[8] Thus, although speech by public employees on matters of their employment is sometimes protected under federal and state whistleblower laws, for First Amendment purposes, public employees who speak in their capacity as public employees enjoy no First Amendment protection whatsoever.
Third, if the employee’s speech involved a matter of public concern and was not made pursuant to the employee’s official duties, then courts must attempt to “balance the interests of the public employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[9] In Garcetti, the Supreme Court instructed that “[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”[10] However, lower courts have interpreted this requirement to mean that an employee’s interest in commenting upon matters of public concern must “outweigh” his or her employer’s interest in promoting an efficient and effective workplace, meaning that this final factor often derails otherwise-valid First Amendment claims as well.[11] If the employee can satisfy all three of these requirements, however, then disciplining the employee for speaking out violates the employee’s rights under the First Amendment.
Satisfying each of these three requirements is undeniably difficult—especially for first responders who require the public’s complete trust that they will discharge their duties fully and impartially without regard to factors like a person’s race, gender, or sexual orientation. (As former New York Mayor Rudy Giuliani celebrated during his speech at the Republican National Convention on Monday, for example: “When the[ police] come to save your life, they don’t ask if you are black or white, they just come to save you!”) Accordingly, public employees often do not enjoy quite the level of First Amendment freedom that many expect or hope to see. Of note, however, the limited First Amendment protections afforded to public employees stand in stark contrast to those held by private employees, who enjoy no First Amendment protections with regard to their employment at all.
Of course, the First Amendment also is not the only source of protection for free speech. Additional protections can be and often are conferred upon public employees by federal law, state law, union agreements, or by contract. For example, pursuant to Tennessee’s Public Employee Political Freedom Act (PEPFA): “it is unlawful for any public employer to discipline, threaten to discipline or otherwise discriminate against an employee because such employee exercised that employee’s right to communicate with an elected public official.”[12] Taking disciplinary action against a public employee who exercises his or her right to communicate with a public official under PEPFA can also result in severe consequences to a government employer, including “treble damages plus reasonable attorney fees.”[13] Thus, the First Amendment functions as only a protective floor upon which additional free speech protections can be – and should be – built higher.
Questions about this article? Email Daniel Horwitz at [email protected].
[1]Connick v. Myers, 461 U.S. 138, 143-44 (1983) (quoting McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892), citing Adler v. Board of Education, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517 (1952); Garner v. Board of Public Works, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317 (1951); United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947); United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508 (1930); Ex parte Curtis, 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232 (1882).
[3] 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006).
[4]See Connick v. Myers, 461 U.S. 138, 143, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Hughes v. Region VII Area Agency on Aging, 542 F.3d 169, 180 (6th Cir. 2008).
[5]Rodgers v. Banks, 344 F.3d 587, 596 (6th Cir. 2003) (quoting Connick, 461 U.S. at 146.).
[6]See, e.g., Pickering, 391 U.S. at 571 (protecting commentary on use of tax dollars and school spending).
[7]Rodgers, 344 F.3d at 596 (internal quotation marks and alterations omitted).
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:
Be recognized by a Party “challenger” before casting a vote;
Be challenged on the spot; and
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 [email protected].
[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).
[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.
[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 grounds, Green Party of Tennessee v. Hargett, 700 F.3d 816 (6th Cir. 2012). See alsoEric 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.”).
[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.”
Beginning Sept. 27, 2015. the American Library Association (ALA), the American Booksellers for Free Expression, and a host of other groups will remind us once again that that banning books damages the “marketplace of ideas” and is contrary to the meaning and purpose of a free society and a constitutional democracy.
Acclaimed authors such as Toni Morrison, Kurt Vonnegut, and Maya Angelou have seen their books banned in certain school districts. Classics such as J.D. Salinger’s Catcher in the Rye, Aldous Huxley’s Brave New World and Alice Walker’s The Color Purple have faced censorship. The wildly popular Harry Potter series by J.K. Rowling has faced significant opposition.
Books may be opposed for a variety of reasons, such as profanity, sexually explicit themes, sorcery, gambling, and violence. The ALA’s Office of Intellectual Freedom website provides detailed descriptions of books challenged year by year and by decade, offers a top ten list, and provides detailed statistics.
The U.S. Supreme Court addressed the concept of banning books from a public school library in Bd. of Educ. v. Pico (1982). Five years ago, in an interview, Robert Rieger – one of the students who challenged the censorship in the Pico case – said that “I couldn’t believe they were taking classics from the library.”
In the Pico decision, Justice William Brennan wrote that public school officials could not remove books from library shelves simply because they disagreed with the ideas in those books. In his reasoning, Brennan emphasized the “right to receive ideas.”
This “right” should be sacrosanct in this nation. Inquisitive minds shouldn’t be repressed or rebuffed. Rather, they should be applauded or encouraged.
We want an educated populace who loves to read and explore. Justice Louis Brandeis warned in 1927 that “the greatest menace to freedom is an inert people.”
Celebrate “Banned Books Week” by taking time to reflect on the importance of First Amendment freedoms and the power of “the right to receive ideas.”
David L. Hudson, Jr. is the Ombudsman for the Newseum Institute’s First Amendment Center. He also is the author or co-author of more than 40 books, including The First Amendment: Freedom of Speech (2012).
[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.
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.
[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
[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.
[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.”).
[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).
[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.”).
[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).
[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.”).
[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.”).
[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.”).
[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 generallyBurson, 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.”).
[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).
[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.
[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.
[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..
[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).
[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.
The most pressing question in student-speech (K-12) jurisprudence concerns just how far the arms of school authorities reach. Nearly fifty years ago, the U.S. Supreme Court famously proclaimed in Tinker v. Des Moines Indep. Comm. Sch. Dist. (1969) that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
The Tinker case involved brave students in Iowa who wore black armbands to their schools to protest the Vietnam War. The Supreme Court ruled in their favor and established a legal rule that applies to this day: can school officials reasonably forecast that the student expression will cause a substantial disruption of school activities?
The Tinker case involved students engaging in peaceful, symbolic expression on school grounds. It is clear that school officials have the power to enforce constitutional rules as applied to students on campus.
Thus, the question becomes: can school officials apply the same “substantial disruption” standard to expression created wholly off-campus? Is it enough that the student’s intended audience are fellow students? Is it enough that someone at the school will feel outrage or distress at the off-campus expression? Is it more a matter of parental discipline or, in the case of truly threatening expression, of law enforcement?
A recent decision by the 5th U.S. Circuit Court of Appeals en banc presents many of these questions. In Bell v. Itawamba County Sch. Bd., the 5th Circuit ruled that school officials could punish a student who posted a rap video he produced on Facebook and then YouTube that criticized two school coaches in explicit and sometimes harsh language.
The 5th Circuit majority determined that school officials could punish the student because the video amounted to harassing, intimidating, and threatening expression and, as such, rose to the level of substantial disruption.
Several dissenting judges disagreed, emphasizing the totally off-campus nature of the expression.
If the case is appealed to the U.S. Supreme Court, the High Court should take a very close look. The federal circuits are deeply divided on the standards to apply to student off-campus, online speech.
School officials and students deserve to know the rules.
The Beacon Center of Tennessee has sued the city of Nashville over its recent Airbnb ordinance. According to its press release:
“In a major development, the Beacon Center today announced the formation of a brand new litigation arm, the Beacon Center Legal Foundation, and filed its first lawsuit. The Beacon Center is suing the city of Nashville on behalf of P.J. and Rachel Anderson. They are challenging unconstitutional regulations the city has placed on their ability to rent their home on Airbnb, a website that connects homeowners like them with guests visiting Nashville.”
The Beacon Center’s complaint, which is accessible here, alleges myriad constitutional violations of both the U.S. and Tennessee Constitution, including:
Violations of Article I, Section 8 of the Tennessee Constitution and the Fourteenth Amendment to the U.S. Constitution (vagueness);
Violations of Article I, Section 19 of the Tennessee Constitution and the First Amendment to the U.S. Constitution (commercial speech);
Violations of Article I, Section 8 and Article XI, Section 8 of the Tennessee Constitution and the Fourteenth Amendment to the U.S. Constitution (equal protection);
Violations of Article I, Section 8 of the Tennessee Constitution and the Fourteenth Amendment to the U.S. Constitution (substantive due process);
Violation of Article I, Section 22 of the Tennessee Constitution (anti-monopoly); and
Violation of Article I, Section 7 of the Tennessee Constitution and the Fourth Amendment to the U.S. Constitution (unreasonable administrative search).
This Monday, a federal judge issued a potentially groundbreaking ruling that an Idaho law that sought to criminalize undercover documentation of animal abuse is unconstitutional. According to the judge’s memorandum opinion and order, the law in question violates both the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The judge explained:
“§ 18-7042 seeks to limit and punish those who speak out on topics relating to the agricultural industry, striking at the heart of important First Amendment values. The effect of the statute will be to suppress speech by undercover investigators and whistleblowers concerning topics of great public importance: the safety of the public food supply, the safety of agricultural workers, the treatment and health of farm animals, and the impact of business activities on the environment.”
The law was challenged by a coalition of non-profit groups including the Animal Legal Defense Fund, People for the Ethical Treatment of Animals, the American Civil Liberties Union of Idaho, and the Center for Food Safety, which argued that the law criminalized whistleblowing and violated the First Amendment.[1] An amicus curiae brief was also filed in support of these groups by legendary First Amendment scholar and Dean of Irvine School of Law Erwin Chemerinsky, who successfully argued that the law unjustifiably discriminated on the basis of a fundamental right — in this case, free speech — by drawing an unconstitutional classification based on the speech’s content.
Many will remember that the Tennessee General Assembly passed a similar law amid great controversy back in 2013, only to have it vetoed by Governor Haslam after numerous animal rights activists—most notably, Carrie Underwood—waged a vigorous public relations campaign seeking to expose the bill’s true intent: To suppress documentation of animal abuse in the agriculture industry. Similar campaigns outside of Tennessee were far less successful, however, leading to the enactment of “ag-gag” laws in several states, including Idaho. Monday’s ruling, however, marks the first time that an “ag-gag” law has ever been struck down in court, seriously calling into question the validity of the seven similar laws that have been enacted across the country.[2]
Questions about this article? Email Daniel Horwitz at [email protected].
