ballot selfie(noun) | ˈbalət ˈselfē | a photograph taken of oneself inside a voting booth, usually showing one’s ballot, typically with a smartphone and shared via social media
Does Georgia have a ban on ballot selfies? Yes.
Is that law constitutional? Maybe not.
As the final week of the 2016 campaign season ticks away, candidates and celebrities alike are urging us to cast our votes early. We are fortunate in Georgia to have nearly a full month of early voting opportunities.
Tennessee also offers early voting, and it was there that Justin Timberlake created waves on Instagram recently by posting an early voting “ballot selfie.” Timberlake quickly removed the post, presumably because someone pointed out to him that Tennessee is one of more than two dozen states that has a ban on ballot selfies.
So, too, does Georgia. O.C.G.A. § 21-2-413(e) clearly provides:
No person shall use photographic or other electronic monitoring or recording devices, cameras, or cellular telephones while such person is in a polling place while voting is taking place . . . .
You may be asking what qualifies as a “polling place.” O.C.G.A. § 21-2-2 defines it as “the room provided in each precinct for voting at a primary or election.” In other words, from the moment you walk into the cafeteria, classroom, church hall, gym, firehouse, library, or other room where you will present your photo ID and cast your ballot, your cell phone and camera must be put away.
But, the Timberlake episode and other ballot selfies that pop-up around this time each election year raise another question: should the government be able to ban ballot selfies? After all, researchers have shown ballot selfies may actually increase voter turnout. And Georgia’s Secretary of State annually encourages voters to #postthepeach after voting. Should a ballot selfie be treated any differently under the law?
Turns out, Georgia’s ballot selfie ban might be unconstitutional.
No Georgia court has heard a published case involving the ban, but three federal cases from other states—representing all the cases heard to-date on ballot selfie bans—help guide how a Georgia court might review Georgia’s law.
Indiana: Ban Invalidated by Federal Trial Court
Indiana’s law forbade voters from taking pictures of their ballots except to document and report a problem with their voting machines.
In October 2015, a federal court in Indianapolis granted a preliminary injunction against Indiana’s ban on ballot selfies. The court held that whether considered under strict scrutiny or immediate scrutiny, “[a]t best, this statute is a blunt instrument designed to remedy a so-far undetected problem.” The federal trial court is still considering whether to permanently enjoin the statute, which if appealed, would be heard by the Seventh Circuit U.S. Court of Appeals.
New Hampshire: Ban Invalidated by First Circuit U.S. Court of Appeals
Just a few weeks ago, the First Circuit U.S. Court of Appeals (which, sitting in Boston, hears federal cases on appeal from Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island) issued a strongly worded opinion invalidating New Hampshire’s 2014 ban on ballot selfies. In so doing, the court upheld the holding of the federal trial court that also invalidated the state ban. The First Circuit unanimously held that “[a] ban on ballot selfies would suppress a large swath of political speech, which ‘occupies the core of the protection afforded by the First Amendment.’”
The case notably included a “friend of the court” brief filed by Snapchat encouraging the court to overturn the selfie ban. Snapchat argued that “[b]allot selfies are the latest in a long historical tradition of voters sharing their civic enthusiasm—and their votes—with their social networks.” Snapchat cited a Pew Research study showing “[t]wo-thirds of social-media users use their accounts for political or civic purposes . . . .” Snapchat also argued that the First Amendment protects the ability of the press and digital newsgatherers to share voters’ ballot selfies.
Michigan: Sixth Circuit Court of Appeals Seems Likely to Uphold Ban
As recently as last week, a federal court held that Michigan’s laws banning ballot selfies “‘significantly impinge’ upon First Amendment free speech rights, and, in prohibiting ballot selfies, fail tailoring, under either strict or relaxed strict scrutiny . . . .” However, this ruling was quickly appealed to the U.S. Court of Appeals for the Sixth Circuit (which, sitting in Cincinnati, hears federal cases on appeal from Kentucky, Michigan, Ohio, and Tennessee), which reversed the trial court’s decision a few days ago.
In a closely divided opinion, the Sixth Circuit denied a preliminary injunction against the selfie ban. The court noted the prior decisions of the First Circuit and Southern District of Indiana but distinguished the Michigan law, holding: “[t]h[o]se decisions concerned laws that were targeted at ballot selfies, not general bans on ballot-exposure and photography at the polls. And, most importantly, th[o]se lawsuits did not seek to enjoin longstanding statutes on the eve of a presidential election.”
Because of the posture of the case, the Sixth Circuit’s opinion only addressed the need for a preliminary injunction, thus the case will be heard on its merits by the trial court after the 2016 election to determine whether the Michigan law will remain valid. But the Sixth Circuit, which would hear the inevitable appeal of the trial court’s decision as to a permanent injunction, would appear to have shown its hand, writing: “It also is not clear whether a ban on ballot selfies ‘significantly impinges’ [voters]’ First Amendment rights.”
Interestingly, if, after this election, the Sixth Circuit were to uphold the Michigan ban, that decision would be in direct opposition to the First Circuit’s decision in Rideout, creating a nice “circuit split” ripe for review by the U.S. Supreme Court. One wonders if Snapchat would release a special filter for oral arguments before the Supreme Court.
Georgia: How Does this Affect Georgia’s Selfie Ban?
So, where does that leave Georgia’s ban? Well, to be clear, all laws are considered valid until a court rules otherwise. But would a court uphold Georgia’s selfie ban? As a wise lawyer once said, it depends.
The court’s analysis will turn on whether the Georgia law is sufficiently “narrowly tailored.” If the court determines that Georgia’s law attempts to regulate the type or content of speech expressed (i.e. casting a ballot), the State will have to show that the law is the “least restrictive means among available, effective alternatives.” If, however, the court determines the Georgia law is designed to regulate speech based on “purposes unrelated to the context of expression,” the State need only show the law is “narrowly tailored to serve a significant government interest.”
Whether a Georgia court will ever hear arguments against Georgia’s ballot selfie ban is yet to be determined. But Ballot-Selfie-Gate-2016 has raised yet another reminder that it is the role of the judiciary to determine whether laws on the books are, in fact, constitutional.
Should you stand accused of destroying democracy with a ballot selfie, please give us a call. In the meantime, make sure you’ve voted by November 8, and after you’ve left the confines of your polling place, don’t forget to #postthepeach.
W. Matthew Wilson is a partner at Akin & Tate, P.C. and runs the firm’s Atlanta office.