Three New York City voters are suing state election officials in federal court, looking to overturn a state ban on “ballot selfies” by arguing that the snapshots are a protected form of political expression.
A court hearing on the matter is scheduled for Tuesday in U.S. District Court in lower Manhattan. Judge Kevin Castel will preside over the hearing, which comes a week before voters head to the polls to cast their ballot for president, Congress and a host of down ballot races.
Under state election law, it is a misdemeanor for voters to share their completed election ballot with others. Violating the rule is punishable by up to a year in jail and a $1,000 fine, according to the law.
“The current guidance is that although you may take a picture of yourself voting in the poll site, you should not post any photo which shows a completed ballot,” said Thomas Connolly, a spokesman for the New York State Board of Elections.
Brooklyn attorney Leo Glickman, who is representing the trio of voters, contends the law is unconstitutional because it restricts and “criminalizes” a voter’s right to free political speech.
“We believe that the ability to take a photograph of your ballot is core political speech that is protected by the First Amendment,” Glickman said in a phone interview.
Glickman noted that federal judges have struck down similar laws in New Hampshire, Indiana and Michigan.
The lawsuit asks the court to issue an order blocking New York elections officials from enforcing the restrictive rule before Election Day on Nov. 8.
Connolly said the board was “still reviewing the lawsuit, so we do not presently have any comment on it.”
Glickman said because presidential hopefuls Hillary Clinton and Donald Trump both having “strong New York ties,” state voters have all the more reason to want to broadcast their ballots on social media.
“The candidates are also known to be the least popular nominees from their respective parties ever,” the lawsuit said. “Therefore, this year is especially important that New Yorkers be able to exercise their right to free political expression by publishing their ballots.”
Ballot selfies are legal in 20 states and the District of Columbia, illegal in 17 states, and the legal status is mixed or unclear in the rest, according to a review by the Associated Press published last week.
Entertainer Justin Timberlake came under scrutiny last week after he posted a selfie casting his ballot, with a message encouraging young voters to head to the polls. Timberlake voted in Memphis, Tennessee, a state that passed a law in January barring voters from recording video or taking pictures inside a polling site.
In Tennessee, violating the law is a misdemeanor, with a penalty that could include up to 30 days in jail and $50 fine. Timberlake later deleted the picture from his Instagram account.