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

Tue Aug 18 11:25:46 PDT 2015

The issue of posting a photograph of a voted ballot has been explored in
Ohio.

http://www.dispatch.com/content/stories/local/2014/10/20/posting-ballot-on-facebook-could-be-a-felony.html
On Aug 18, 2015 2:10 PM, "Scarberry, Mark" <Mark.Scarberry at pepperdine.edu>
wrote:

> 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
>
>
>
>
>
> [image: Image removed by sender. image]
> <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> 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
>
> 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 92697-8000
>
> 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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