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

Tue Aug 18 09:20:17 PDT 2015

People at the polls are free to take a picture of a voter ballot inside the voting booth, and then emerge from the voting booth and say, "I spoiled my ballot" and receive a new ballot.  They can then vote the new ballot differently and cast it.  I have been a polling place official for 50 years and I know that no record is kept in California when a voter gets a replacement ballot.  So the briber would be tricked.
 Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147
      From: Douglas Johnson <djohnson at ndcresearch.com>
 To: Rick Hasen <rhasen at law.uci.edu> 
Cc: "<law-election at department-lists.uci.edu>" <law-election at department-lists.uci.edu> 
 Sent: Tuesday, August 18, 2015 9:12 AM
 Subject: Re: [EL] Why the Selfie is a Threat to Democracy"

I think the focus on vote "buying" probably misses the larger threat: employers and others with leverage over a person who "encourage voting" by telling employees/victims to take a picture of themselves with their ballot. It's easy for an employer or someone with similar leverage to make clear who they expect their employees to support. And such "encourage voting" selfie-driven approaches would appear to me to be much easier to pull off than requiring any significant number of victim(s) to bring absentee ballots to work or some similar location.
- Douglas JohnsonDouglas.johnson at cmc.edu
Sent from my iPhone
On Aug 18, 2015, at 8:53 AM, Rick Hasen <rhasen at law.uci.edu> wrote:

 I'm getting interesting off-list responses confirming this is a problem in certain parts of the country. As I've long written, what might work in Oregon might not work in other parts of the country with longer and more illustrious histories of vote buying. 

 On 8/18/2015 8:45 AM, Zach West wrote:

  Why would anyone orchestrate a vote buying conspiracy that relies on selfies rather than vote by mail?  It seems that it would be far more reliable to be able to watch voters fill out and mail their ballots rather than rely on a selfie of a ballot that may or may not be changed before actually being cast.  

  And yet I am unaware of a massive increase in the number of vote by mail cases coming out of Oregon since adopting vote by mail.  

 On Tue, Aug 18, 2015 at 11:33 AM, Steve Klein <stephen.klein.esq at gmail.com> 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.

   They're already quite common, enough to prompt this article: 
   http://www.huffingtonpost.com/2014/11/03/photo-polling-place_n_6095746.html 

 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] 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  twitter: @ElectProject      From: law-election-bounces at department-lists.uci.edu [mailto: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”
   Posted on August 18, 2015 7:20 am by Rick Hasen    I have written this commentary 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 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 of Reed v. Town of Gilbert.  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 1st 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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Irvine, CA 92697-8000
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949.824.0495 - fax
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 *Licensed to practice law in Illinois and Michigan     
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UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
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