POLITICS
04/22/2016 04:05 pm ET Updated Apr 22, 2016

Snapchat Wants To Make 'Ballot Selfies' Legal On Election Day

In many states, voters are barred from taking pictures of their ballots.
Hill Street Studios via Getty Images

There's a good chance that if you take out your phone to snap a photo of yourself voting on Election Day, an election official will tell you to knock it off. That's because in many states, it's still illegal to share a picture of your ballot. Social media giant Snapchat is now joining the fight to change the laws and give voters a right to the ballot selfie.

A federal judge struck down New Hampshire's ban on ballot photos last year, and the state is appealing that decision to the U.S. Court of Appeals for the 1st Circuit. Under the law, voters faced a $1,000 fine for sharing a picture of their ballot. 

On Friday, Snapchat filed an amicus brief in the case, arguing that the state's ban violates the First Amendment. From its brief:

A ballot selfie -- like a campaign button -- is a way to express support for or against a cause or a candidate. And because it is tangible proof of how a voter has voted, a ballot selfie is a uniquely powerful form of political expression. It proves that the voter's stated political convictions are not just idle talk. Not only that, but ballot selfies and other digital expressions of civic engagement encourage others to vote -- particularly younger voters who have historically low turnout rates. Ballot selfies are thus all at once deeply personal and virtuously public expressions.

And they're the sort of expressions that the State cannot categorically ban without violating the First Amendment.

Neal Katyal, the former acting solicitor general of the United States, is one of the authors of Snapchat's brief.

Election law has not kept up with the ubiquity of smartphones. State officials are often left interpreting outdated statutes and creating policies that are unevenly applied and confusing for ordinary voters to figure out. They vary not only from state to state, but also from precinct to precinct.

Most of the restrictions that do exist were put in place with the best of intentions, meant to preserve the integrity of the voting process. Preventing the photographing of ballots, officials argue, maintains ballot secrecy and discourages vote-buying schemes, in which a person takes a photo of a marked ballot to prove he or she chose the right candidate in order to receive a payout. 

But supporters of ballot selfies say these concerns do not outweigh First Amendment rights.

There’s also the matter of uncovering electoral malfeasance. Reporters are often -- but not always -- granted special permission to record and photograph at polling locations, but citizen journalists generally are not. Snapchat argues that by restricting ballot photos, the state is hindering the public's ability to report on and share information about problems at the polls:

[B]allot selfies help the media perform its watchdog role in elections. Ballot-design problems -- whether butterfly ballots, hanging chads, or some electronic glitch with computer screens -- have all too frequently disrupted the orderly democratic process. A ballot-selfie ban like the State's could deprive the public from learning about those problems or validating what might otherwise be dismissed as just unfounded anecdote. 

Snapchat has increased its political coverage in the 2016 campaign cycle, including creating stories about people voting that are made up of users' individual Snapchats. In the New York primary, for instance, there were plenty of shots of people showing off their completed ballots because in that state, ballot photography is allowed.

Below is The Huffington Post's list of rules for ballot photography for each state. 

  • 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 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: In 2015, a federal judge ruled that New Hampshire could not stop people from photographing and sharing pictures of their ballots. The state is appealing the case. Verdict: Ballot photography allowed. 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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