A Guide To Not Getting Arrested When You Use Your Cell Phone On Election Day

11/03/2014 06:44 pm ET | Updated Nov 03, 2014
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WASHINGTON -- Aaron Huertas wanted to make sure he picked the right candidates when he walked into the voting booth Wednesday, taking advantage of the early voting period in Washington, D.C. When he came down to the end of the ballot, he pulled out his phone to confirm the name of the Board of Education candidate he wanted to back.

"A poll worker told me voters aren't allowed to use smartphones at the booth," he said. "Seemed odd to me. She was a bit brusque about it, so I didn't ... ask why."

Jenna Lowenstein was also stopped when she tried to take a picture of her ballot in 2008. She was running for an Advisory Neighborhood Commission position in D.C. at the time, and wanted to send her parents a photo of her name in print. A poll worker, however, made her delete the picture.

One of the reporters on this story also tried to take a picture of her polling place during a recent election -- for no other reason than to post on Instagram to share with her friends -- and was made to delete it by a polling worker. She was then told to leave the premises.

Increasingly, there's a good chance that if you're on social media, your friends will post -- or try to post -- a photo of themselves doing their civic duty.

But in some places, they could go to jail for doing so. And in other places, where there isn't actually any law prohibiting the practice, they may be barred from doing so anyway by state officials. The restrictions aim to prevent voter intimidation or voting bribery, both practices that are prohibited under federal law. But the state policies becomes more gray when a photographer isn’t participating in those activities.

Election law on what's allowed at polling places has not kept up to reflect the ubiquity of smartphones. Instead, secretaries of state and other officials are left interpreting outdated statutes and creating policies that are often unevenly applied and confusing for ordinary voters to figure out. They not only vary from state to state, but also from precinct to precinct.

In Washington, D.C., for example, there is no law saying that Lowenstein couldn't take a picture of her ballot. The D.C. Board of Elections, however, has a policy against it and puts up signs saying cell phones aren't allowed, which also explains why Huertas wasn't able to check his device when voting. There's no real penalty if you break the rule, except being told to stop what you're doing and the ensuing frustration.

Indeed on Saturday, the last day of early voting in D.C., voters standing in line at a polling place in the upper northwest portion of the city were told by a worker to put away their phones while they waited to cast a ballot. They did so, grudgingly, with one woman asking why.

"A number of reasons," the poll worker explained, eventually mentioning the "privacy of voters" and noting that cell phones usually have cameras these days.

New Hampshire implemented a law this year that makes it illegal to share a photo of your own ballot, with a fine up to $1,000. The American Civil Liberties Union is now challenging that law, on the basis that it violates freedom of speech. But in fact, many states ban sharing your ballot, even if they don’t specify that the law extends to Twitter.

Reid Magney, a spokesman for the Wisconsin Government Accountability Board, told The Huffington Post that while there is no specific law against taking a photo of your own ballot in the state, "We advise voters not to take pictures of their completed ballots, let alone post them Facebook or Twitter." That’s because under Wisconsin’s election fraud law, it is a class 1 felony to intentionally show your marked ballot to another person. Magney said that people still do photograph and share pictures of their completed ballots, and he is not aware of anyone having been prosecuted by a district attorney.

Andy Sellars, a fellow at Harvard University's Berkman Center for Internet and Society, put together a chart in 2012 showing which states have laws that actually prohibit taking photos of ballots or polling places. In short, very few do.

"We should have clarity here," said Sellars. "The danger when you have an ambiguous law in the states is it could be used for oppressive or unbalanced ends."

Most of the rules that do exist were put in place with the best of intentions, meant as measures to preserve the integrity of the voting process. Preventing the photographing of ballots, officials argue, maintains ballot secrecy and discourages vote-buying schemes, where a voter can take a photo of a marked ballot to prove he or she cast the right vote in order to get the payday.

"I certainly think it's a good thing to prohibit photographing ballots (including absentee ballots)," said University of Florida political scientist Daniel Smith. "If voters are able to photograph their ballots, they have a greater likelihood of being compensated for their vote, as it allows them to provide documentary proof to ballot brokers, or bolleteros as they are known in south Florida."

Officials also want to avoid a scenario where so-called "poll watchers" stand and take pictures to intimidate voters from turning out. Deval Patrick, now the Democratic governor of Massachusetts, wrote to the Mississippi secretary of state in 1994 about the issue. At the time, Patrick was assistant attorney general for the Civil Rights Division at the Department of Justice.

The Justice Department's lawyers, Patrick wrote, believed that "the actions of white people in videotaping black voters at or near the polls could constitute a violation" of the Voting Rights Act, calling them "thinly veiled attempts to intimidate black voters at the polls."

Banning photography does raise some First Amendment concerns, said David Greene, senior staff attorney with the Electronic Frontier Foundation, a nonprofit that defends civil liberties and free speech. He noted that after the Supreme Court ruled in Burson v. Freeman that a 100-foot buffer zone for campaigning did not restrict free speech, many legislatures took that decision to mean that it was permissible to restrict First Amendment rights on some level around polling places.

Greene added that while it’s one thing to make sure people are not pressured while voting, it’s another to forbid them from photographing their ballots, when they can go tell their friends how they voted anyway. "I don’t think you should be able to restrict that type of stuff," he said.

But Marc Rotenberg, executive director of the Electronic Privacy Information Center, a nonprofit which defends privacy and free speech, said that forbidding tweeting a photo of your own ballot is "actually a good restriction from a voting fairness perspective."

"I imagine it's tempting to show others how you voted, but it is contrary to a theory of democratic government that recognizes the need to safeguard votes for unpopular candidates," he added.

Jerald Lentini, general counsel at the Bulldog Finance Group, which raises money for campaigns, said a good reason to change the laws on technology at the polls may simply be that they're already being "regularly broken by people who simply don't know that they're committing a crime."

"I don't know of any prosecutions for posting images of a ballot online, but I see people on Facebook doing it every single election. A lot of voters are very proud to cast ballots, especially when they feel strongly about a particular race, and they want to share that pride with their friends online," he said.

There's also the issue of possible malfeasance. While reporters are often -- but not always -- granted special permission to record and photograph at polling locations, more citizen journalists are now capturing events and sharing them online. Sellars said barring the public from being able to share problems on social media could be harmful.

"Obviously if there's a problem with how a polling station is conducting the election, that is an important thing for us to know very early or after an election," he said.

Penalties in states where there are laws prohibiting photographs at the ballot box range from misdemeanors to Wisconsin's class 1 felony. In places where the law is less explicit, violators will usually just be told to delete the picture and/or asked to leave. But the law isn't always enforced.

Suzanne, who asked that her last name not be used, voted in northern Virginia in 2011. She brought her son, who was then four months old, with her, and a polling worker agreed to take a picture of her with her "I Voted" sticker next to the optical scanner. Virginia, however, does not allow polling place photography.

In Louisiana, the state election code specifies that no one, including a voter, can "allow a ballot to be seen" by others. Violating this provision could result in a fine up to $500 and/or up to six months in jail.

But Meg Casper, the press secretary for Louisiana Secretary of State Tom Schedler (R), acknowledged that this law has not kept up with changing technology.

"Obviously, this law was written before the age of social media, so we do receive many reports of individuals posting their ballots on Facebook, Twitter, etc.," she said. "Our response has been to remind voters that their vote is private."

Below are the laws and policies on taking photos in polling places in each state, based on the statutes and the responses received by The Huffington Post from government officials. These are rules that apply to regular voters, not reporters, who often have additional privileges. We marked a practice as "banned" whether it's prohibited by state law or by election officials.

In some cases, a state may allow photographing a blank ballot but not a completed one. In those cases, we still marked the law as banning ballot photography.

Finally, if you’re intimidating voters or engaging in vote bribery, it’s safe to say that you’re going to get in trouble no matter what.

  • Alabama: Alabama's policy is confusing, stating, "All citizens are allowed to photograph or videotape general election activities in a polling place as long as they remain 30 feet outside a polling place and do not photograph an elector marking their ballot." When asked how a voter could both be "in a polling place" and "30 feet outside a polling place" at the same time, Alabama Secretary of State spokesman Will Sutton explained, "I believe they mean citizens can take pictures as long as they remain 30 feet outside a polling place and do not photograph an elector marking their ballot." Verdict: Ballot photography banned. Polling place photography banned.

  • Alaska: State law says a "voter may not exhibit the voter’s ballot to an election official or any other person so as to enable any person to ascertain how the voter marked the ballot." Verdict: Ballot photography banned. Polling place photography allowed.

  • Arizona: According to the Arizona secretary of state's office, photography and videography are prohibited within the polling place and for an additional 75 feet. Breaking this rule is a class 2 misdemeanor. Verdict: Ballot photography banned. Polling place photography banned.

  • Arkansas: Arkansas state code says that "any ... person in or out of this state in any primary, general, or special election in this state" cannot "divulge to any person the results of any votes cast for any candidate or on any issue in the election until after the closing of the polls on the day of the election." It's not clear, however, if this rule would apply specifically to individuals attempting to take photographs of their own ballots, and the Arkansas secretary of state's office did not return requests for comment. Verdict: Ballot photography banned. Polling place photography may be allowed.

  • California: A 2012 secretary of state memo stated that the office "has historically taken the position that the use of cameras or video equipment at polling places is prohibited," with exceptions for media. Verdict: Ballot photography banned. Polling place photography banned.

  • Colorado: Voters are not allowed to show how they voted, so an unmarked ballot may be allowed. There's no statewide rule on taking photos in polling places, though the Colorado secretary of state's office notes that some county clerks may bar voters from bringing cell phones or cameras into the polling place. Verdict: Ballot photography banned. Polling place photography allowed, although some counties may ban cell phone use.

  • Connecticut: State law criminalizes "any act which invades or interferes with the secrecy of the voting or causes the same to be invaded or interfered with," but it's not clear if this would apply to a voter photographing his or her own ballot. Connecticut officials did not return requests for comment. Verdict: Ballot photography banned. Polling place photography unclear.

  • Delaware: According to the Delaware Elections Commissioner Elaine Manlove, "[V]oters are not allowed to use cameras or phones in the polling place." Since it's a policy, not a law, there's no real penalty for breaking the rule, other than getting reprimanded. Verdict: Ballot photography banned. Polling place photography banned.

  • District of Columbia: Cell phones are barred at polling locations in the District. There's no penalty for breaking the rule, other than being asked to stop. Verdict: Ballot photography banned. Polling place photography banned.

  • Florida: State law says, "No photography is permitted in the polling room or early voting area." Verdict: Ballot photography banned. Polling place photography banned.

  • Georgia: Georgia law states, "No elector shall use photographic or other electronic monitoring or recording devices or cellular telephones while such elector is within the enclosed space in a polling place." Verdict: Ballot photography banned. Polling place photography banned.

  • Hawaii: Rex Quidilla, spokesman for the state Office of Elections, said there is an administrative ban on photography in polling places. Verdict: Ballot photography banned. Polling place photography banned.

  • Idaho: The secretary of state's office instructs poll workers that with the exception of the media, photography is not allowed in polling places. There's no penalty, however, if the rule is broken. Verdict: Ballot photography banned. Polling place photography banned.

  • Illinois: According to state election code, voters are not allowed to take pictures of their marked ballots and show them to other people. Doing so could result in a class 4 felony. Bernadette Harrington, legal counsel for the Illinois State Board of Elections, said that there is no specific prohibition on photography in a polling place, although taking a photo of another person's marked ballot is barred. Verdict: Ballot photography banned. Polling place photography allowed.

  • Indiana: Taking a photo of a ballot and showing it to someone else -- including on social media -- is a level 6 felony in the state of Indiana. Trent Deckard, co-director of the Indiana Election Division, said there technically is no state prohibition on photography in polling places, but that could vary depending on the polling location. "We have an issue where a county elections board will adopt a policy asking people to silence their phones while they come in. There's no law on that," he said. "But then people will take that, at the precinct level, to 'don't use your phone at all.' And so they will creep a little bit further." Verdict: Ballot photography banned. Polling place photography allowed, although voters may still be told to put away their phones.

  • Iowa: State law prohibits cameras and cell phones in the voting booth. The penalty is a misdemeanor violation. But according to Chance McElhaney, spokesman for the Iowa secretary of state, there's no prohibition on taking photos in the polling place "as long as it is not intimidating or showing the way a person marked their ballot." Verdict: Ballot photography banned. Polling place photography allowed.

  • Kansas: According to V. Kay Kurtis, spokeswoman for the Kansas secretary of state, "Kansas laws don’t mention Facebook or even photography. Our office has discouraged taking pictures of ballots and posting them on the web, but we’ve been unable to prohibit or completely prevent it. We do think many people refrain from doing it if they know it’s discouraged by our office." Verdict: Ballot photography banned. Polling place photography banned.

  • Kentucky: State law bars people from using a "paper, telephone, personal telecommunications device, computer, or other information technology system to create a checkoff list or record the identity of voters." While the law doesn't specifically address using cell phones for other purposes, in 2008, then-Secretary of State Trey Grayson (D) said voters were not allowed to bring cameras and recording devices into polling places. Verdict: Ballot photography banned. Polling place photography banned.

  • Louisiana: State law says people cannot "allow a ballot to be seen," resulting in a fine of no more than $500 or jail for no more than six months, or both. "Obviously, this law was written before the age of social media, so we do receive many reports of individuals posting their ballots on Facebook, Twitter, etc. Our response has been to remind voters that their vote is private," said Meg Casper, press secretary for the secretary of state. Photography at polling places doesn't appear to be banned, but it cannot be done in a way that affects or interferes with the voting process. Verdict: Ballot photography banned. Polling place photography allowed.

  • Maine: Deputy Secretary of State Julie Flynn said, "Ballots are not public documents, so voters should not be taking copies or pics and posting their ballots. We have not prosecuted anyone for this, but this is like putting a distinguishing mark on your ballot so that a party or candidate will know how you voted (harkens back to the days when the political machine would pay people for voting for their candidates). People should be discouraged from doing this." She did not comment on photography in polling places generally. Verdict: Ballot photography banned. Polling place photography may be allowed.

  • Maryland: Maryland regulations ban the use of electronic communication devices, including cameras and cell phones, inside polling locations. Verdict: Ballot photography banned. Polling place photography banned.

  • Massachusetts: State law bans voters from sharing a marked ballot, with a penalty of jail for no more than six months or a fine of no more than $100. Verdict: Ballot photography banned. Polling place photography allowed.

  • Michigan: According to a recent press release from the Michigan secretary of state's office, "The use of video cameras, still cameras and other recording devices are prohibited in the polls when they are open for voting. This includes still cameras and other recording features built into many cell phones. ... Photos of ballots should not be posted on social media. Additionally, under Michigan election law, a ballot is rejected if deliberately exposed. A voter who deliberately exposes their ballot will not be allowed to vote in that election." Verdict: Ballot photography banned. Polling place photography banned.

  • Minnesota: Nathan Bowie, a spokesman for the Minnesota Secretary of State, said that while there is no law that specifically prohibits voters from recording their own voting experience, the office "strongly discourages voters from using cameras or video recorders in the polling place." Bowie cited voter privacy issues and the fact that taking extra time to Instagram could hold up the voting process for others. State law also prohibits voters from showing their marked ballot to others. Verdict: Ballot photography banned. Polling place photography not technically banned, but it is discouraged.

  • Mississippi: Mississippi does not allow voters to show marked ballots, but it's unclear whether photos can be taken in polling places. Verdict: Ballot photography banned. Polling place photography unclear.

  • Missouri: Missouri law bars a voter from showing a ballot to others "with the intent of letting it be known how he is about to vote or has voted." So in theory, putting up a photo on Instagram of a totally blank ballot, with no other information, would be allowed. Breaking the state rule comes with a class 4 misdemeanor. There's nothing in state law that bars voters from taking a picture in a polling place, although since some locations are private property (e.g. a church), the people running the operation could prohibit photos. Verdict: Ballot photography banned. Polling place photography allowed, but may be up to the discretion of the polling workers.

  • Montana: According to the secretary of state’s office, Montana law does not specifically prohibit taking pictures of a polling place or a ballot. However, election officials can limit any activity that may be disruptive to the voting process. Additionally, photos of marked ballots are discouraged, because Montana law states that an elector may not show the contents of the elector’s ballot to anyone after it is marked. Verdict: Ballot photography banned. Polling place photography allowed.

  • Nebraska: In Nebraska, under no conditions is a non-media person allowed to take photos inside a polling place building, including of a ballot, according to the secretary of state’s office. Verdict: Ballot photography banned. Polling place photography banned.

  • Nevada: Under Nevada law, “A member of the general public shall not photograph the conduct of voting at a polling place or record the conduct of voting on audiotape or any other means of sound or video reproduction.” Violating the secrecy of a voter’s ballot through photography is also prohibited. Verdict: Ballot photography banned. Polling place photography banned.
  • New Hampshire: According to the secretary of state’s office, it is legal for a non-media person to take a photo inside a polling place, provided the photographer does not try to capture how another person has voted and does not try to capture what another voter is entering on a registration form. However, there is a law specifically barring a person from sharing a digital image of how he or she voted, with a fine up to $1,000. Verdict: Ballot photography banned. Polling place photography allowed.

  • New Jersey: According to the Digital Media Law Project, it is “unclear whether a citizen recording inside the polling place would qualify as ‘expressive activity’ subject to [the Supreme Court] ban.” New Jersey election officials did not respond to clarify. Verdict: Ballot photography is banned. Polling place photography allowed, but policies are unclear.

  • New Mexico: State law does not appear to ban photography inside polling places or of ballots, but election officials did not respond to clarify. Verdict: Policies unclear. Ballot photography may be allowed. Polling place photography may be allowed.

  • New York: There is no law against photographing inside polling places, but according to the New York State Board of Elections, causing a commotion could get you kicked out. John Conklin, a spokesman for the Board of Elections, said people are encouraged to take photos of their ballots before, but not after, voting. Verdict: Ballot photography allowed. Polling place photography allowed.

  • North Carolina: Under North Carolina law, “No person shall photograph, videotape, or otherwise record the image of any voter within the voting enclosure, except with the permission of both the voter and the chief judge of the precinct.” Ballot photos are also prohibited. Verdict: Ballot photography banned. Polling place photography banned.

  • North Dakota: According to the secretary of state’s office, photography inside a polling place is allowed, and there is no law against taking a picture of your own ballot. Verdict: Ballot photography allowed. Polling place photography allowed.

  • Ohio: In Ohio, voters may not use devices to take photographs inside a polling place, according to the secretary of state’s office. The penalties for breaking this rule are unclear. Verdict: Ballot photography banned. Polling place photography banned.
  • Oklahoma: According to the Oklahoma State Election Board, there is no law restricting photography inside a polling place, but sharing your ballot while you're voting is banned. So, the board recommends that you don’t photograph your marked ballot. Verdict: Ballot photography banned. Polling place photography allowed.

  • Oregon: According to the secretary of state’s office, it is legal to take photos inside a polling place. Additionally, “elections officials can't show you a ballot for a photo, but an individual can.” Verdict: Ballot photography allowed. Polling place photography allowed.
  • Pennsylvania: Pennsylvania law bans voters from showing a "ballot or the face of the voting machine voted by him to be seen by any person with the apparent intention of letting it be known how he is about to vote.” Those who break the law are subject to a fine up to $1,000, a maximum 12-month jail sentence, or both. The law does not specify whether photography inside polling places is banned, and election officials did not respond to clarify. Verdict: Ballot photography banned. Polling place photography allowed, but policies are unclear.

  • Rhode Island: According to the rules established by the Rhode Island Board of Elections, “Electronic recording of the election process is allowed inside the polling place as long as it is done outside of the railed or enclosed voting area. Electronic recording devices may not hinder the election process or compromise a voter's right to cast a secret ballot by recording the specific votes(s) cast by any person." Under the rules, a moderator may remove or arrest a person who disturbs voting. Verdict: Ballot photography banned. Polling place photography allowed.
  • South Carolina: In South Carolina, there are no laws against taking photographs inside a polling place. But a spokesperson for the state’s Election Commission said that people can take photos only as long as they “don’t get too close to the machines,” and that poll workers still may tell people to turn their cell phones off. Verdict: Ballot photography allowed. Polling place photography allowed, but do it without turning your cell phone on?
  • South Dakota: Under South Dakota law, “No person may, in any polling place or within or on any building in which a polling place is located or within one hundred feet from any entrance leading into a polling place ... use any communication or photographic device.” The penalty is a class 2 misdemeanor. Verdict: Ballot photography banned. Polling place photography banned.

  • Tennessee: Tennessee law does not say that photographing ballots or inside polling places is prohibited, but election officials did not respond to clarify policies. Photograph at your own risk. Verdict: Official policies are unclear. Ballot photography may be allowed. Polling place photography may be allowed.
  • Texas: Texas law prohibits photography within 100 feet of a polling place. A person who violates this law may be asked “to turn off the device or to leave the polling place.” Verdict: Ballot photography banned. Polling place photography banned.
  • Utah: It is legal for any person in Utah to take a photo inside a polling place or of an unmarked ballot, according to the lieutenant governor's elections staff. However, under state law, it is illegal for a voter to allow his or her ballot to be seen by any other person with an intent to reveal the vote, subject to a class C misdemeanor. Verdict: Ballot photography banned, but sharing the photo could get you in trouble. Polling place photography allowed.
  • Vermont: There is no law in Vermont expressly prohibiting a person from taking a photo of a ballot or while inside a polling place, according to the secretary of state’s office. However, there is a law that allows a $1,000 fine for a voter who “allows his ballot to be seen by another person with an apparent intention of letting it be known how he or she is about to vote.” Verdict: Ballot photography allowed, but sharing the photo of your marked ballot could get you in trouble. Polling place photography allowed.

  • Virginia: Under Virginia law, it is forbidden to take photos in a polling place or of a ballot. The penalty depends on the offense. Verdict: Ballot photography banned. Polling place photography banned.

  • Washington: Washington voters primarily vote by mail. At voting centers where people drop of their ballots, there are no prohibitions against photography, as long as it’s not disruptive. Verdict: Ballot photography allowed. Polling place photography allowed.

  • West Virginia: In West Virginia, a person is allowed to take pictures inside the polling place (unless they are disrupting the voting process, at which time a poll worker can tell them to leave), but they cannot take pictures of people actually voting or take pictures of a ballot. Under West Virginia law, entering a voting booth “with an recording or electronic device in order to record or interfere with the voting process” is a misdemeanor subject to a fine up to $1,000, a maximum 12-month jail sentence, or both. Verdict: Ballot photography banned. Polling place photography allowed.

  • Wisconsin: Under the Wisconsin Government Accountability Board’s interpretation of state law, “no voter or observer may use any video or still camera inside the polling place while the polls are open for voting, except for news media.” There is not a specific prohibition on taking a picture of your ballot. However, the board advises voters not to photograph their completed ballots because under Wisconsin’s election fraud law, it is a class I felony to intentionally show your marked ballot to any person. Verdict: Ballot photography banned. Polling place photography banned. Seriously, don’t do it.

  • Wyoming: According to the secretary of state, Wyoming has no laws that specifically bar photography inside polling places or of ballots. However, there is a law that says, “Judges of election have the duty and authority to preserve order at the polls by any necessary and suitable means.” Verdict: Ballot photography allowed. Polling place photography allowed. But a judge might decide to kick you out anyway.

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