POLITICS

'Ballot selfie law' faces scrutiny from federal judge

U.S. District Judge Sarah Evans Barker said Indiana's ballot selfie law relies on "a whole lot of hypotheticals."

Kristine Guerra
kristine.guerra@indystar.com
Voters lined up in the Parish Hall at Holy Spirit Catholic Church at Geist in Hamilton County on Nov. 6, 2012.

If you enter the voting booth this November and, as a proud voter, you snap a selfie with your ballot and share it on Facebook, you could be committing a felony.

Indiana's "ballot selfie law," which was created by state lawmakers to prevent voter fraud, made it illegal to take such photos. Whether that law will remain in place in the upcoming municipal elections is now up to a federal judge to decide.

The issue of ballot selfies reached the federal court in August when the American Civil Liberties Union of Indiana filed a lawsuit that says the new law, which took effect in July, is unconstitutional because it violates free speech rights. The ACLU of Indiana is asking U.S. District Judge Sarah Evans Barker to issue an order that would prevent state officials from enforcing the law next month — and until the lawsuit reaches a resolution.

In a hearing Tuesday, Barker seemed critical of the law, pressing the state's attorney to explain what justifies punishing voters for taking harmless photographs.

The law's intent is to maintain the integrity of the ballot by removing a tool that could be used to commit voter fraud, said Dennis Mullen, deputy attorney general for the Indiana attorney general's office, which is tasked with defending state laws in court. He offered an example wherein a voter is being coerced by either an organization or his or her peers to vote a certain way and to provide proof — such as a picture — of how he or she voted.

Barker said a problem with the law is that it justifies impinging on free speech rights by relying on "a whole lot of hypotheticals," and there isn't empirical data showing voter fraud is an ongoing problem in Indiana.

She also suggested ballot selfies actually could be used to fend off voter fraud. Barker posed a hypothetical situation wherein voters take pictures with their ballots to show others they've voted with their conscience.

"Your position wobbles, counsel, on the existence of a problem," Barker told Mullen during the hearing.

Mullen argued that lack of empirical data does not mean a problem doesn't exist, and the law is a proactive approach to preventing voter fraud.

ACLU of Indiana challenges ‘ballot selfie law’

Senate Enrolled Act 466, authored by Sen. Pete Miller, R-Brownsburg, makes it a potential felony to take pictures of a marked ballot and share that picture on social media. The statute does not cite specific penalties, but it says interfering with the secrecy of voting in any way is a Level 6 felony, which carries a punishment of six months to two years in prison and up to $10,000 in fines.

In an earlier interview with The Indianapolis Star, Miller said the statute is a comprehensive election bill that loosens restrictions on the use of cellphones at polling places and inside voting booths, while ensuring voters aren't taking pictures of their ballots after they've voted.

During the hearing, Barker questioned why the law considers taking ballot selfies a felony, saying it seems "impractical in this day and age when a picture is taken of everything."

Ken Falk, legal director for the ACLU of Indiana, said the law is written too broadly because it would punish voters who simply took a picture with their ballots and had no intention of committing voter fraud. He also said it allows certain forms of speech but prohibits others. For example, taking a picture of oneself inside a voting booth is allowed, but including the ballot in the picture isn't.

Falk said the legislature could've simply enacted a law that bans cellphones in voting booths. He added that there already are laws prohibiting the buying of votes.

"The question is, 'What does this add to that?' " he said, adding later that people want to memorialize proof that they've voted for numerous reasons.

Barker must make a decision before the Nov. 3 election, which includes mayoral and City-County Council races in Indianapolis.

The lawsuit was filed against the Indiana secretary of state, which oversees elections and campaigning statewide; members of the Indiana Election Commission, a four-member team that administers the state's election laws; and the superintendent of the Indiana State Police, which enforces laws in criminal matters.

Call Star reporter Kristine Guerra at (317) 444-6209. Follow her on Twitter: @kristine_guerra.