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

Tue Aug 18 11:07:41 PDT 2015

Many people who would be paid $5 or $10 for a vote wouldn’t have that kind of equipment. And it’s not hard to see that someone’s taking a real selfie instead of just a photo of the ballot. (That would be true in polling places that use the kind of three sided booth that mine does. I wonder how many have fully enclosed voting booths?) But maybe we’d be “runnin’ against the [technological] wind.”

I suppose also that some voters who could be persuaded to sell their votes might register too late to get a mail-in ballot, so a ban on photographing ballots could be helpful to combat future fraud. Overall, though, I think it would be much more important to restrict mail-in ballots (requiring some sort of claim of cause for issuance of an absentee ballot). At least we could try to prevent Internet voting from becoming accepted; note the recent hacks of the IRS (much worse than first reported, I think) and of other companies’ databases. Does anyone really think that Internet voting could be made secure (or as secure as having the kind of paper ballots used in my county that can be scanned – with arrows pointing to candidates filled in using ink pens – and that later can be physically counted, if a recount is needed)?

Mark Scarberry
Pepperdine

From: Richard Winger [mailto:richardwinger at yahoo.com]
Sent: Tuesday, August 18, 2015 10:50 AM
To: Scarberry, Mark; John Tanner; John White
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Why the Selfie is a Threat to Democracy"

If it's that easy to see when someone is using a camera, how did those US Supreme Court protesters manage to take pictures from inside the US Supreme Court chambers during oral argument?  Court law enforcement personnel constantly walk up and down the aisles during oral argument, scrutinizing the audience.

And how did the film makers for the filmAngels & Demons manage to film inside the Vatican after permission had been denied?  The link below has a quote from the director, "Cameras can be made really small."
http://www.theguardian.com/film/2009/apr/27/angels-and-demons-vatican-fake-tourists

[cid:image001.jpg at 01D0D9A4.62E67A00]<http://www.theguardian.com/film/2009/apr/27/angels-and-demons-vatican-fake-tourists>

Small cameras and fake tourists: how Angels and Demons f...<http://www.theguardian.com/film/2009/apr/27/angels-and-demons-vatican-fake-tourists>
Cameramen posing as tourists shot more than 250,000 photographs and hours of video, used by producers of Da Vinci Code prequel to get around ban on filming in...

View on www.theguardian.com<http://www.theguardian.com/film/2009/apr/27/angels-and-demons-vatican-fake-tourists>

Preview by Yahoo

Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147

________________________________
From: "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
To: John Tanner <john.k.tanner at gmail.com>; John White <white at livengoodlaw.com>
Cc: "law-election at department-lists.uci.edu" <law-election at department-lists.uci.edu>
Sent: Tuesday, August 18, 2015 10:35 AM
Subject: Re: [EL] Why the Selfie is a Threat to Democracy"

At my polling place there are little three sided booths. You can't see how a person is voting but it would usually be able to see if someone was taking a photo.

Are these really selfies showing the voter and the ballot, or just photos of the ballot? If they are selfies then it would be easy to see that someone was using a selfie stick or otherwise holding the ballot up to take a selfie.

I'm a bit surprised at the admission to using Democratic training materials that appear to have been instructional manuals for buying votes. Statute of limitations, I suppose.

As for the list being off record, perhaps that comment was tongue in cheek, and I wouldn't attribute anything said here to any list member, but the archives are apparently open. At the request of conlawprof list members, I closed the archives for that list so that only list members would have access, but we still warn people that what they say may be disclosed (in violation of list rules).

Mark Scarberry
Pepperdine University School of Law

Sent from my Verizon Wireless 4G LTE Smartphone

-------- Original message --------
From: John Tanner
Date:08/18/2015 10:15 AM (GMT-08:00)

To: John White
Cc: law-election at department-lists.uci.edu
Subject: Re: [EL] Why the Selfie is a Threat to Democracy"

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<mailto: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.
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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] 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<mailto: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.

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] 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.

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] 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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