GRAND RAPIDS, Mich. — In a response to a federal lawsuit filed in U.S. District Court in Grand Rapids challenging the state’s ban on so-called “ballot selfies” — the act of taking a picture of one’s marked ballot — the State of Michigan argues the “eleventh hour” suit will “throw a monkey wrench into the uniformity” of a 125-year-old election law.
The lawsuit, filed by Portage resident Joel Crookston on Sept. 9 challenges the restrictions on photographing ballots arguing it’s a violation of free speech.
The State calls the suit a “self-created emergency,” claiming Crookston cannot show the law is unconstitutional, according to the defendant’s response filed Oct. 3.
Michigan is one of only eight states that administers elections at the local level. A new, last-minute change to procedures would be “highly disruptive” in 4,800 precincts that could compromise a “fair and orderly election,” the State argues.
The lawsuit stems from a photo posted by Crookston on Facebook in 2012 showing his write-in vote for a friend for a Michigan State University trustee position. Crookston said he was unaware he was breaking the law when he posted a picture of his ballot.
“He could have challenged these four years ago when he says he took a photograph of his marked ballot and posted it on social media,” Attorney General Bill Schuette wrote in the defendant’s response, calling Crookston’s delay in filing the suit inexcusable.
Schuette goes on to say:
Camera phone photos are acceptable in some contexts, but it is constitutional to prohibit their use in the polling place. First, they open new ways to expose a marked, secret ballot. This facilitates votebuying and coercion (which Michigan can prove), as well as more subtle forms of vote intimidation that are difficult to detect and even harder to remedy because the election cannot be held anew.
Second, photography infringes on the rights of other voters in the exercise of their right to vote by causing intimidation, disruption, and long lines at the polls. This may cause some to leave the polls or even avoid them altogether.
According to state statute, taking pictures or videos in a polling place is considered an “election day offense,” with the only exception being for credential news media in limited, pre-determined situations.
State law goes even further to stipulate that any ballot shown to someone else other than an individual tasked with legally assisting the voter cast that ballot “shall not be deposited in the ballot box,” but instead marked “rejected for exposure,” meaning the vote won’t be counted.
The law—which has been enacted since 1891—was passed to curtail the practices of vote buying and ballot exposure, which were common place in elections in Michigan and across the United States prior, said Fred Woodham, spokesperson for the state bureau of elections.
Attorney Steve Klein with the Pillar of Law Institute, who filed the lawsuit on behalf of Crookston, says the court process has been expedited in hopes of getting a ruling before the Nov. 8 general election.
Crookston has claimed he would be irreparably harmed if an injunction is not issued by Nov. 8 "because his speech has been chilled by the threat of civil and criminal penalties," Schuette writes, but "the Secretary of State has not and will not instruct local election officials to refer voters who expose their ballots in the polling place for criminal prosecution."
Klein calls the argument being made by the state "baseless" and points to a recent federal appeals court decision in New Hampshire ruling that state's "ballot selfie" ban unconstitutional.
“Certainly voter intimidation and distraction are legitimate concerns and people should not be allowed to advocate or threaten people within the polling places, but a ballot selfie doesn’t really get displayed within a polling place, it goes on social media," Klein said.
Upholding a lower court ruling, the decision in New Hampshire called the state's 2014 law an overreaction to an unsubstantiated concern. Photo- and video-sharing app Snapchat even filed a brief in support of the suit in New Hampshire, arguing that ballot selfies are a legitimate means of "express(ing) support for or against a cause or a candidate."
