John Locke Update / Research Brief

What The Law Says About Selfies, Kids, And Guns In Polling Places

posted on in Law & Regulation, Legal Update
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Beyonce’s done it.

Sean Hannity’s done it.

And we all know Kim Kardashian has done it too.

Done what? According the article quoted above, all those celebrities used their cell phones to take pictures of their ballots in the 2012 election. Such “ballot selfies” were—and still are—illegal in California, but the state legislature recently passed a bill that legalizes the practice. Once it takes effect in January, California voters will be free to follow Beyonce’s example without fear of legal retribution. For North Carolina voters, on the other hand, the situation is, and will continue to be, more complicated.

In a recent blog post, UNC School of Government Professor, Jeff Welty, alerts his readers to the following provisions in the NC General Statutes:

-G.S. 163-273(a)(1): “It shall be unlawful … [f]or a voter, except as otherwise provided in this Chapter, to allow his ballot to be seen by any person.”

 -G.S. 163-274(b): “It shall be unlawful for any person who has access to an official voted ballot or record to knowingly disclose in violation of G.S. 163-165.1(e) how an individual has voted that ballot.”

-G.S. 163-165.1(e): “Voted ballots … shall be treated as confidential, and no person other than elections officials performing their duties may have access to voted ballots…. Voted ballots … shall not be disclosed to members of the public in such a way as to disclose how a particular voter voted, unless a court orders otherwise. Any person who has access to an official voted ballot … and knowingly discloses in violation of this section how an individual has voted that ballot is guilty of a Class 1 misdemeanor.”

-G.S. 163-166.3(c): “No person shall photograph, videotape, or otherwise record the image of a voted official ballot for any purpose not otherwise permitted under law.”

On its face, every one of those laws would appear to forbid ballot selfies. Nevertheless, Jeff’s response to the question, “Can I take a picture of my ballot and post it on Facebook?” isn’t, “No.” It’s, “I don’t think so.” The reason he can’t be more definitive is that the matter hasn’t been litigated in North Carolina. It’s possible, though unlikely, that a court might find an implicit exception for ballot selfies. It’s also possible, and much more likely, that a court might find those provisions unconstitutional, at least as they apply to a person photographing his or her own ballot.

In New Hampshire and Indiana, for example, voters successfully challenged similar laws. They argued that their right to take and post ballot selfies is protected by the First Amendment’s free speech clause, and in each case, the federal district court that heard the complaint agreed. Nevertheless, for North Carolinians, the matter won’t be settled until it’s been reviewed by a court with local jurisdiction. Such a court might agree with the courts in New Hampshire and Indiana, but, then again, it might not. Laws like the North Carolina statutes listed above aren’t arbitrary restrictions on freedom of speech, nor are they obviously unreasonable. By preserving ballot secrecy, such laws help prevent voter coercion and vote-buying. If a court found that a law banning ballot selfies was necessary in order to prevent those evils, it might very well uphold that law.

If you want to know how other states deal with ballot selfies, Vox has compiled a state-by-state inventory. And if you want to know more about North Carolina voting law, follow the link to Jeff Welty’s blogpost provided above. There he answers several other questions, including:

Is voter fraud a crime?

Can I bring my minor child with me to vote?

Can I bring my gun with me to vote?

The answers are, respectively:

Yes.

Yes.

It depends on where you vote…. Polling places are often in schools, where G.S. 14-269.2 makes it a crime to possess a firearm, or in other local government buildings where local ordinances may prohibit the possession of guns. Some polling places are on private property, in which case the person or entity in charge of that property may bar firearms from the premises.

The bottom line seems to be: if you’re lawfully registered to vote in North Carolina, by all means do so—and by all means take your children with you.  But you should probably leave your gun at home and your cellphone in your pocket.

Jon Guze is Senior Fellow in Legal Studies at the John Locke Foundation. Before joining the John Locke Foundation, Jon practiced law in Durham, North Carolina for over 20 years. He received a J.D., with honors, from Duke Law School… ...

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