[EL] Why the Selfie is a Threat to Democracy"
Lorraine Minnite
lminnite at gmail.com
Tue Aug 18 10:49:08 PDT 2015
I'm aware of a number of states that do not prohibit photography outright,
but achieve the same effect by prohibiting voters from allowing their
ballots to be seen by others not officially involved in the balloting. For
example, from North Carolina:
§ 163-273. Offenses of voters; interference with voters; penalty.
(a) Any person who shall, in connection with any primary or election
in this State, do any of the acts and things declared in this section to be
unlawful, shall be guilty of a Class 2 misdemeanor. It shall be unlawful:
*(1) For a voter, except as otherwise provided in this Chapter, to
allow his ballot to be seen by any person.*
(2) For a voter to take or remove, or attempt to take or remove, any
ballot from the voting enclosure.
(3) For any person to interfere with, or attempt to interfere with,
any voter when inside the voting enclosure.
(4) For any person to interfere with, or attempt to interfere with,
any voter when marking his ballots.
(5) For any voter to remain longer than the specified time allowed
by this Chapter in a voting booth, after being notified that his time has
expired.
(6) For any person to endeavor to induce any voter, while within the
voting enclosure, before depositing his ballots, to show how he marks or
has marked his ballots.
(7) For any person to aid, or attempt to aid, any voter by means of
any mechanical device, or any other means whatever, while within the voting
enclosure, in marking his ballots.
(b) Election officers shall cause any person committing any of the
offenses set forth in subsection (a) of this section to be arrested and
shall cause charges to be preferred against the person so offending in a
court of competent jurisdiction. (1929, c. 164, s. 29; 1967, c. 775, s. 1;
1987, c. 565, s. 12; 1993, c. 539, s. 1111; 1994, Ex. Sess., c. 24, s.
14(c).)
And,
§ 163-166.7. Voting procedures.
(a) (Effective until January 1, 2016) Checking Registration. - A
person seeking to vote shall enter the voting enclosure through the
appropriate entrance. A precinct official assigned to check registration
shall at once ask the voter to state current name and residence address.
The voter shall answer by stating current name and residence address. In a
primary election, that voter shall also be asked to state, and shall state,
the political party with which the voter is affiliated or, if unaffiliated,
the authorizing party in which the voter wishes to vote. After examination,
that official shall state whether that voter is duly registered to vote in
that precinct and shall direct that voter to the voting equipment or to the
official assigned to distribute official ballots. If a precinct official
states that the person is duly registered, the person shall sign the
pollbook, other voting record, or voter authorization document in
accordance with subsection (c) of this section before voting.
(a) (Effective January 1, 2016) Checking Registration. - A person
seeking to vote shall enter the voting enclosure through the appropriate
entrance. A precinct official assigned to check registration shall at once
ask the voter to state current name and residence address. The voter shall
answer by stating current name and residence address and presenting photo
identification in accordance with G.S. 163-166.13. In a primary election,
that voter shall also be asked to state, and shall state, the political
party with which the voter is affiliated or, if unaffiliated, the
authorizing party in which the voter wishes to vote. After examination,
that official shall state whether that voter is duly registered to vote in
that precinct and shall direct that voter to the voting equipment or to the
official assigned to distribute official ballots. If a precinct official
states that the person is duly registered, the person shall sign the
pollbook, other voting record, or voter authorization document in
accordance with subsection (c) of this section before voting.
(b) Distribution of Official Ballots. - If the voter is found to be
duly registered and has not been successfully challenged, the official
assigned to distribute the official ballots shall hand the voter the
official ballot that voter is entitled to vote, or that voter shall be
directed to the voting equipment that contains the official ballot. No
voter in a primary shall be permitted to vote in more than one party's
primary. The precinct officials shall provide the voter with any
information the voter requests to enable that voter to vote as that voter
desires.
(c) (Effective until January 1, 2018) The State Board of Elections
shall promulgate rules for the process of voting. Those rules shall
emphasize the appearance as well as the reality of dignity, good order,
impartiality, and the convenience and privacy of the voter. Those rules, at
a minimum, shall include procedures to ensure that all the following occur:
(1) The voting system remains secure throughout the period voting is
being conducted.
(2) Only properly voted official ballots or paper records of
individual voted ballots are introduced into the voting system.
*(3) Except as provided by G.S. 163-166.9, no official ballots leave
the voting enclosure during the time voting is being conducted there. The
rules shall also provide that during that time no one shall remove from the
voting enclosure any paper record or copy of an individually voted ballot
or of any other device or item whose removal from the voting enclosure
could permit compromise of the integrity of either the machine count or the
paper record.*
(4) All improperly voted official ballots or paper records of
individual voted ballots are returned to the precinct officials and marked
as spoiled.
(5) Voters leave the voting place promptly after voting.
(6) Voters not clearly eligible to vote in the precinct but who seek
to vote there are given proper assistance in voting a provisional official
ballot or guidance to another voting place where they are eligible to vote.
(7) Information gleaned through the voting process that would be
helpful to the accurate maintenance of the voter registration records is
recorded and delivered to the county board of elections.
(8) The registration records are kept secure. The State Board of
Elections shall permit the use of electronic registration records in the
voting place in lieu of or in addition to a paper pollbook or other
registration record.
(9) Party observers are given access as provided by G.S. 163-45 to
current information about which voters have voted.
(10) The voter, before voting, shall sign that voter's name on the
pollbook, other voting record, or voter authorization document. If the
voter is unable to sign, a precinct official shall enter the person's name
on the same document before the voter votes.
Lori Minnite
On Tue, Aug 18, 2015 at 1:08 PM, John Tanner <john.k.tanner at gmail.com>
wrote:
> 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.
>
>
>
>
>
> <image003.jpg>
>
> *John J. White, Jr.*
>
> 425.822.9281 Ext. 7321
>
> Bio <http://livengoodlaw.com/person/john-j-white-jr/> | vCard
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> | Address <http://livengoodlaw.com/contact-us/> | Website
> <http://livengoodlaw.com/>
>
> white at livengoodlaw.com
>
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>
> *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 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> 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
>
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>
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>
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> --
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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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