[EL] Why the Selfie is a Threat to Democracy"

Tue Aug 18 08:41:02 PDT 2015

"the ban can be used to prosecute more serious organized cases"

Can it, though? I have seen plenty of people post ballot photos on
Facebook, but I can't recall any prosecutions in the past. If this offense
isn't being prosecuted, would there be an arbitrariness issue if someone
began to try?

In his Glossip dissent, Justice Breyer raised the question of whether there
might be an 8th Amendment issue arising from how few counties actually
pursue capital punishment against defendants (fewer than 2% of counties
account for 100% of death sentences). Could there be a similar 14th
Amendment concern if only select counties prosecute voters for taking
ballot photos?

I'm firmly in favor of legalizing picture-taking in the voting booth, both
because I don't think prohibition is going to prove effective at preventing
the practice, and because I was around for the FL-13 debacle in 2006 where
some footage from inside the voting booth would have proven incredibly
useful.

On Tue, Aug 18, 2015 at 11:23 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

> Try to imagine this 10 or 20 years in the future and without a selfie ban
> ballot selfies will be ubiquitous, making ferreting out their use for fraud
> that much more difficult.
> Of course there should be very light punishment for unknowing violations
> so as not to sour young people on democracy. But the ban can be used to
> prosecute more serious organized cases, which I think are only bound to
> grow as the selfies become so common.
>
>
> On 8/18/2015 8:12 AM, Michael McDonald wrote:
>
> I encourage you to carefully think out the entire cost-benefit analysis of
> ballot selfie bans. You would have law enforcement arrest a person in a
> polling location for taking a ballot selfie, disrupting the activities in
> the polling location and sending some otherwise innocent young person to
> jail, souring them on democracy, for what? An extremely low probability
> event that a campaign would orchestrate a vote buying scheme. There are
> better ways to steal an election with lower odds of being detected. I
> imagine ballot selfies are a rare event themselves (I’ve never witnessed
> one). As I said, a campaign that uses selfies as a way to verify votes is
> asking for people to post their vote buying on social media. Furthermore,
> poll workers might notice a dramatic upswing in the number of ballot
> selfies. Ballot selfies are just a dumb way to subvert an election. Is it
> possible some campaign will use them? Of course it is. But applying common
> sense, a vote buying scheme using ballot selfies is a low probability
> threat coupled with higher odds of detection. Weighed against the costs of
> enforcement to the police and burdens imposed on otherwise naïve voters,
> there are much better things that we can expend our time and resources on
> than making ballot selfies illegal.
>
>
>
>
>
>
>
>
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [
> mailto:law-election-bounces at department-lists.uci.edu
> <law-election-bounces at department-lists.uci.edu>] *On Behalf Of *Rick Hasen
> *Sent:* Tuesday, August 18, 2015 10:50 AM
> *To:* law-election at department-lists.uci.edu
> *Subject:* Re: [EL] Why the Selfie is a Threat to Democracy”
>
>
>
> The big difference between the two cases is the costs vs. the benefits. In
> the case of a ban on ballot selfies, the cost is minimal. There are ample,
> ample ways to express one's support for a candidate aside from the single
> way (the selfie) which allows verification of how someone voted in the
> polling booth. So the cost of the prohibition is minimal, compared to the
> cost of voter id laws.
>
> Further, I actually think a national voter id law makes sense, as I argue
> in my Voting Wars book, to deal with problems such as double voting across
> states (a relatively real but rare problem), so long as it is coupled with
> a national program to register and pay all the costs associated with
> verifying voters' identities.
>
>
> On 8/18/2015 7:42 AM, Michael McDonald wrote:
>
> We should apply the same standard to voter id laws as to ballot selfies.
> What evidence can you provide Rick that there has been vote buying enabled
> by ballot selfies (not with mail ballots, specifically ballot selfies)? Why
> criminalize a behavior, forcing law enforcement to expend valuable
> resources to police it, when there are more pressing matters for them to
> focus on? It strikes me that existing laws regulating vote buying are
> sufficient. A candidate stupid enough to use ballot selfies as a way to
> verify votes will likely find people posting their selfies on social media
> with the caption “I just made $20!”
>
>
>
> ============
>
> Dr. Michael P. McDonald
>
> Associate Professor
>
> University of Florida
>
> Department of Political Science
>
> 223 Anderson Hall
>
> P.O. Box 117325
>
> Gainesville, FL 32611
>
>
>
> phone:   352-273-2371 (office)
>
> e-mail:  dr.michael.p.mcdonald at gmail.com
>
> web:     www.ElectProject.org <http://www.electproject.org/>
>
> twitter: @ElectProject
>
>
>
> *From:* law-election-bounces at department-lists.uci.edu [
> mailto:law-election-bounces at department-lists.uci.edu
> <law-election-bounces at department-lists.uci.edu>] *On Behalf Of *Rick Hasen
> *Sent:* Tuesday, August 18, 2015 10:21 AM
> *To:* law-election at uci.edu
> *Subject:* [EL] ELB News and Commentary 8/18/15
>
>
> Why the Selfie is a Threat to Democracy”
> <http://electionlawblog.org/?p=75414>
>
> Posted on August 18, 2015 7:20 am <http://electionlawblog.org/?p=75414> by
>  *Rick Hasen* <http://electionlawblog.org/?author=3>
>
> I have written this commentar
> <http://blogs.reuters.com/great-debate/2015/08/17/why-the-selfie-is-a-threat-to-democracy/>y
> for Reuters Opinion.
>
> *What could be more patriotic in our narcissistic social-media age than
> posting a picture of yourself on Facebook with your marked ballot for
> president? Show off your support for former Secretary of State Hillary
> Clinton, Donald Trump, Senator Bernie Sanders (D-Vt.) or former Florida
> Governor Jeb Bush.  Last week, a federal court in New Hampshire struck down
> <http://www.buzzfeed.com/adolfoflores/new-hampshires-ban-on-ballot-selfies-is-struck-down-as-uncon?bftwnews&utm_term=4ldqpgc#.vsPZMbG18> that
> state’s ban on ballot selfies as a violation of the First Amendment right
> of free-speech expression.*
>
> *That might seem like a victory for the American Way. But the judge 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.*
>
> The case is more fallout from the Supreme Court’s surprising blockbuster
> decision
> <http://www.nytimes.com/2015/08/18/us/politics/courts-free-speech-expansion-has-far-reaching-consequences.html?ref=politics>
>  of Reed v. Town of Gilber
> <http://www.supremecourt.gov/opinions/14pdf/13-502_9olb.pdf>t.  The piece
> concludes:
>
> *Barbadoro also said the law was not narrowly tailored, given that nothing
> would stop someone from posting on Facebook, or elsewhere, information
> about how he or she voted. What this analysis misses is that a picture of a
> valid voted ballot, unlike a simple expression of how someone voted, is
> unique in being able to prove how someone voted.*
>
> *Indeed, it is hard to imagine a more narrowly tailored law to prevent
> vote buying. Tell the world you voted for Trump! Use skywriting. Scream it
> to the heavens. We just won’t give you the tools to sell your vote or get
> forced to vote one way or another.*
>
> *The social-media age gives people plenty of tools for political
> self-expression. New Hampshire’s law is a modest way to make sure that this
> patriotic expression does not give anyone the tools to corrupt the voting
> process. Perhaps the judges of the 1**st U.S. Circuit Court of Appeals or
> the U.S. Supreme Court will see the error of Barbadoro’s ways.*
>
>
>
>
>
>
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>
> --
>
> Rick Hasen
>
> Chancellor's Professor of Law and Political Science
>
> UC Irvine School of Law
>
> 401 E. Peltason Dr., Suite 1000
>
> Irvine, CA 92697-8000
>
> 949.824.3072 - office
>
> 949.824.0495 - fax
>
> rhasen at law.uci.edu
>
> hhttp://www.law.uci.edu/faculty/full-time/hasen/
>
> http://electionlawblog.org
>
>
>
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> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.edu
> hhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
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