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Lisa Schmidt
Court says ballot selfie ban is an unconstitutional ban on free speech

Voting Next Week? Ballot Selfies Allowed, Court Says

Whether you are headed to the polls next week just for the presidential candidates or plan to vote all the way down ticket to your local school board, getting out the vote is exceptionally important. But can you push your friends to vote by posting a ballot selfie? In a last-minute decision, a Michigan court has just said yes!

Music icon Justin Timberlake got into trouble recently for breaking an obscure law. He took a picture of his early-voting ballot and posted it on social media saying #rockthevote.

“Choose to have a voice!” he said.

But by doing so, he violated a Tennessee law against taking photographs of ballots. If enforced, the law could result in 30 days in jail or a $50 fine.

Michigan has a similar law, banning ballot selfies in an effort to prevent vote-buying and voter intimidation. Under the law, anyone who takes a picture of his or her ballot could face up to 90 days in jail and pay up to $500 dollars.

That is, until October 24, 2016.

With 2 weeks to go before election day, a U.S. District Court Judge in the Western District of Michigan granted a preliminary injunction of the state’s ballot selfie ban as an unconstitutional restriction on free speech. The decision will allow Michigan voters to speak in favor of voting, for any candidate, by posting ballot photos on social media.

In 2012, Joel Crookston of Portage took a selfie of his ballot and posted it on social media. He didn’t know it was illegal at the time. As a result, his ballot was rejected and his vote didn’t count. His attorney told the Detroit Free Press that action was his constitutional right.

“How many laws threaten to punish people for doing innocuous things,” said Steve Klein, an attorney for Crookston. “To unequivocally state who you voted for is among the most powerful forms of free speech. It’s more powerful than a yard sign because a picture is worth a thousand words.”

Judge Janet Neff agreed.

“[T]he electoral process can be secured in a more reasonable manner than the blanket prohibition on citizens’ photography. . . . The prohibition on ballot selfies reaches and curtails the speech rights of all voters.”

Despite the short notice, Attorney General Bill Schuette filed an emergency request to stay the decision with the 6th Circuit Court of Appeals. His filing says the preliminary injunction:

“[T]hreatens the integrity and smooth running of the upcoming election. . . . Cell phone camera use and photography are acceptable in many circumstances. . . . But it is not unconstitutional to prohibit their use in the polling place. . .”

But his request was denied. The Court of Appeals said that Crookston had “borne his burden of demonstrating a substantial likelihood that the two state laws, and corresponding rules, are unconstitutional under the First Amendment.”

That means, for now, Michigan voters are free to post away. Ballot selfies are back on the table for Michigan residents, at least until the 6th Circuit Court of Appeals has time to review the case. But that won’t happen until well after election day.

Lisa J. Schmidt is an attorney at Schmidt Law Services, PLLC. If you have a family or school law issue, contact Schmidt Law Services today to schedule a free consultation.

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