ACLU of Indiana challenges ‘ballot selfie law’
In Indiana, taking pictures of yourself with your marked ballot and sharing it on social media sites is illegal. Merely taking a picture is a violation of state law.
But the American Civil Liberties Union of Indiana is challenging the new state law, which took effect July 1, saying it impinges on a person’s First Amendment rights. The nonprofit organization filed a lawsuit Thursday in the U.S. District Court for the Southern District of Indiana on behalf of its members who wish to express themselves and their political views by taking pictures of their ballots and sharing the photos with others.
The law, called Senate Enrolled Act 466, makes taking and sharing such photos online a potential felony. Although it does not cite specific criminal penalties, the law says interfering with the secrecy of voting in any way is a Level 6 felony. The bill’s author argues the law is constitutional and is meant to protect the sanctity and secrecy of the ballot box.
“This is clearly what courts would describe as a content-based regulation of speech,” said Ken Falk, legal director for the ACLU of Indiana. “In a situation where you are impinging speech in this way, you have to have a real reason and (the law) has to be narrowly tailored.”
For instance, Falk said, people are allowed to tell others whom they voted for, but they’re not allowed to take pictures of their ballot.
“If I just keep (the picture) on my phone and do nothing with it,” Falk said, “I violated the law.”
Sen. Pete Miller, R-Brownsburg, said SEA 466 is a comprehensive election bill that loosens restrictions on the use of cell phones at polling places and even inside a voting booth. At the same time, it also ensures that voters aren’t taking pictures of their ballots after they’ve voted.
Miller said the Indiana law was crafted to guard against voter fraud and intimidation, and avoid instances wherein a voter is asked to provide proof that he or she voted a certain way.
“There’s a compelling interest here. Just because we haven’t had vote buying as a clear issue today, that is definitely an issue from the past,” said Miller, who authored the bill. “We don’t want to say, ‘No one’s vote buying, so we’ll just not do anything.’ ”
Falk said he does not see how the bill would prevent voter fraud and coercion. Critics say the law, dubbed the “ballot selfie law,” could inevitably harm innocent political speech, like those of first-time voters who are excited to show that they’ve voted and the candidates they supported.
Miller disagrees that the law is restrictive.
“Anyone is free to announce to the world how they’ve voted,” Miller said. “There are multiple ways of doing that.”
He also said he’s open to other less restrictive ways to guard against vote-buying and intimidation.
The suit was filed against the Indiana secretary of state, members of the Indiana Election Commission and the superintendent of the Indiana State Police. A spokeswoman for the Indiana attorney general’s office, which represents state departments and office holders in civil cases, said the agency will review the complaint. Defendants in a civil case have 30 days from when they were informed of a lawsuit to file a response in court.
The ACLU, which has more than 3,000 members, is asking a federal judge to declare the state law unconstitutional and to issue a preliminary injunction prohibiting enforcement of the statute.
Earlier this month, a federal judge in New Hampshire struck down a similar statute, finding it squelches free speech rights. The ruling on Aug. 15 was the result of a lawsuit filed by the ACLU of New Hampshire on behalf of a voter who was investigated by the state, after he wrote his dead dog’s name on his ballot instead of voting for any of the Republican candidates for U.S. Senate — and then posted a picture of the ballot on Facebook.
In Minnesota, taking pictures with marked ballots is legal, but the issue is still a topic of debate.
Call Star reporter Kristine Guerra at (317) 444-6209. Follow her on Twitter: @kristine_guerra.