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

Tue Aug 18 10:08:08 PDT 2015

A number of states do prohibit photography in the polls.  I believe Texas prohibits telephones in the polls.
> On Aug 18, 2015, at 12:06 PM, John White <white at livengoodlaw.com> wrote:
> 
> There are alternatives to a criminal ban on ballot “selfies” that do not implicate the First Amendment right to publish.  Cellular phones and photography inside the polling place could be prohibited.  This may be more cumbersome, but avoids a direct prohibition on publication of information.  Even under more deferential standards, this would render the ban suspect.
>  
> It seems to me that “all mail” elections and the widespread availability of absentee ballots with reduced showing of need are a far greater threat than voters taking “selfies” of themselves and their ballots.  The voter might well spoil the ballot after the picture and get a new one.  The “vote buyer” would be none the wiser.  Only a “selfie” video of the ballot actually being deposited to the ballot box would confirm that the deal was consummated. 
>  
> With all mail elections, gathering voters into a location, “encouraging” groups to fill out ballots together and he chance of voters bringing the complete ballot to the “vote buyer” pose the same risk of ballot verification, but the vote buyer can watch the ballot be placed in the envelope and put them in the mail – assuring that what is bought stays bought.  Elections by mail also pose the risk that someone other than the voter fills out the ballot.  There is simply no ballot security, and signature matching with thousands, tens or hundreds of thousands of ballots does not provide even the minimal  anti-fraud protection that having a voter show up to cast a ballot does.
>  
> In Washington state, the “selfie” ban would likely fail muster under the state constitution as well.  Nearly all pre-publication restraints on speech or press are prohibited.  Whether a ballot “selfie” would be deemed a sufficient abuse for post-publication remedies is not certain, but the smart money here would be that criminalizing them would fail.
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> John J. White, Jr.
> 425.822.9281 Ext. 7321
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> 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 8:32 AM
> To: John Tanner; Michael McDonald
> Cc: law-election at department-lists.uci.edu
> Subject: Re: [EL] Why the Selfie is a Threat to Democracy"
>  
> Those who know don't talk and those who talk don't know.
> 
> On 8/18/2015 8:28 AM, John Tanner wrote:
>  You don’t post the picture on social media and then wait for a check, you show it to the person who gives you the money, whiskey, or other substance.  Honestly, doesn’t anyone on this list serve know how to steal an election?
>  
> On Aug 18, 2015, at 11:12 AM, Michael McDonald <dr.michael.p.mcdonald at gmail.com <mailto:dr.michael.p.mcdonald at gmail.com>> 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.
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> From: law-election-bounces at department-lists.uci.edu <mailto:law-election-bounces at department-lists.uci.edu> [mailto: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 <mailto: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.
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> 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 <mailto: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> [mailto: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 <mailto: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 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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> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
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