[EL] Why the Selfie is a Threat to Democracy"
David Ely
ely at compass-demographics.com
Tue Aug 18 13:48:39 PDT 2015
I also have the 3 (tiny) sided booths (more like little standing desks)
where I vote. If I had my cell phone it would be very easy for me to take a
photo of my ballot and ID without anyone noticing.
From: law-election-bounces at department-lists.uci.edu
[mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of
Scarberry, Mark
Sent: Tuesday, August 18, 2015 10:35 AM
To: John Tanner; John White
Cc: law-election at department-lists.uci.edu
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>
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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> 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: <mailto:dr.michael.p.mcdonald at gmail.com>
dr.michael.p.mcdonald at gmail.com
web: <http://www.electproject.org/> www.ElectProject.org
twitter: @ElectProject
From: <mailto:law-election-bounces at department-lists.uci.edu>
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: <mailto:law-election at uci.edu> law-election at uci.edu
Subject: [EL] ELB News and Commentary 8/18/15
<http://electionlawblog.org/?p=75414> Why the Selfie is a Threat to
Democracy”
Posted on <http://electionlawblog.org/?p=75414> August 18, 2015 7:20 am by
<http://electionlawblog.org/?author=3> Rick Hasen
I have written
<http://blogs.reuters.com/great-debate/2015/08/17/why-the-selfie-is-a-threat
-to-democracy/> 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
<http://www.buzzfeed.com/adolfoflores/new-hampshires-ban-on-ballot-selfies-i
s-struck-down-as-uncon?bftwnews&utm_term=4ldqpgc#.vsPZMbG18> 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
<http://www.nytimes.com/2015/08/18/us/politics/courts-free-speech-expansion-
has-far-reaching-consequences.html?ref=politics> surprising blockbuster
decision of <http://www.supremecourt.gov/opinions/14pdf/13-502_9olb.pdf>
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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UC Irvine School of Law
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Rick Hasen
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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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