Land Of The Free, Home Of Your Face: The Battle For The Ballot Selfie

When voters head to the polls on Tuesday in New Hampshire, no one will get arrested if they take a selfie with their ballot and post it on Instagram.

This may not sound revolutionary, but it took a federal court to save what James Franco once called “the new way to look someone right in the eye and say, ‘Hello, this is me’” from accusations of nefariousness in New Hampshire. And, if the state Secretary of State’s office gets its way, ballot selfies might be illegal again by November.

Two years ago, the state legislature amended its law banning voters from revealing their ballots to anyone else — in an effort to prevent vote-buying and election fraud — to prohibiting posting their ballots on social media. The Secretary of State’s office was worried that the Internet could spur a renaissance in the voter-coercion industry. Several voters were later notified that they were being investigated for taking an illegal selfie and could face a $1,000 fine.

The local ACLU chapter took up the case, along with a few rebellious plaintiffs — including one guy who posted his ballot with the caption, “Come at me, bro.” Last August, a federal court overturned the ban, saying that it was a “content-based restriction on speech that cannot survive strict scrutiny.” Those in favor of ballot selfies, either because of the First Amendment or the opportunity to show excitement about a privilege that fewer and fewer Americans take advantage of, rejoiced. The Secretary of State’s office filed an appeal a month later, and the ACLU says that oral arguments are expected to take place at the First Circuit Court of Appeals in Boston this spring.

For now, however, the selfie is protected political speech, at least in New Hampshire. Maine, Utah, and Oregon have also gotten rid of prohibitions on ballot selfies. Arizona passed a law specifically permitting ballot selfies — which aren’t actually selfies, as the ballots aren’t snapping the photos (if they are, we have some questions, and may have to notify People for the Ethical Treatment of Paper) — as long as they aren’t taken in the voting booth, and are done with a sample or absentee ballot instead of the real thing. A ban in Indiana was put on hold while a federal court considers its legal standing. When an ACLU attorney was asked if he thought the preliminary injunction would lead to a flood of ballot selfies, he responded, “I don’t think this was a problem before the lawsuit.”

New Hampshire State Representative John Burt also hates the selfie ban. This is a man who detests frivolous legislation so much he once joined his colleagues in killing a bill, drafted by fourth graders, that would make the red-tailed hawk the official state bird. “If we keep bringing more of these bills, and bills, and bills forward that really I think we shouldn't have in front of us,” he said at the time, “we'll be picking a state hot dog next.”

In California, a Democratic state legislator is trying to free the voting booth selfie. While Republicans usually stress that the selfie is political speech, Assemblyman Marc Levine sees it as a way to get people excited about voting. He told the Los Angeles Times last month, “People are taking pictures of their dogs, they’re taking pictures of their dinner, so let’s take pictures of voting. It’s time to make voting cool and ubiquitous, and ballot selfies are a powerful way to do that.”

In Nebraska, Democratic State Senator Adam Morfield is trying to appease state officials worried about fraud by noting in his proposed legislation that the only legal ballot photos will be “voluntary” ones.

Andy Langlois, a plaintiff in New Hampshire, wasn’t even trying to make a political point when he snapped a photo of his primary ballot in 2014. He just wanted to commemorate the fact that he had voted for his dead dog, whom he had lost only a few days earlier, instead of any of the less-qualified humans on the ballot. Langlois, who sells handmade leather holsters and rifle slings for a living, recently moved to North Carolina. He is probably going to vote for his dog again this year.

“Oh god, yeah! Akira would do more than anyone else on the ballot,” he said. “She’d give you her favorite toy.”

Langlois has not read up on local election law, and is unaware if selfies are illegal in his new home. “We’ll see,” he said, “if I get yelled at again this year when I try to do it again.” According to Ethan Wilson at the National Conference of State Legislatures, North Carolina ​does​ prohibit photographing completed ballots — although not ballot selfies specifically, so Andy's time as a selfie activist might not be done.