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WASHINGTON -- Aaron Huertas wanted to make sure he picked for the right candidates when he walked into the voting booth Wednesday, taking advantage of the early voting period in Washington, D.C. When he came down to the end of the ballot, he pulled out his phone to confirm the name of the board of education candidate he wanted to back.
'A poll worker told me voters aren't allowed to use smartphones at the booth,' he said. 'Seemed odd to me. She was a bit brusque about it, so I didn't ... ask why.'
Jenna Lowenstein was also stopped when she tried to take a picture of her ballot in 2008. She was running for an Advisory Neighborhood Commission position in D.C. at the time, and wanted to send her parents a photo of her name in print. A poll worker, however, made her delete the picture.
One of the reporters on this story also tried to take a picture of her polling place during a recent election -- for no other reason than to post on Instagram to share with her friends -- and was made to delete it by a polling worker. She was then told to leave the premises.
Increasingly, there's a good chance that if you're on social media, your friends will post -- or try to post -- a photo of themselves doing their civic duty.
But in some places, they could go to jail for doing so. And in other places, where there isn't actually any law prohibiting the practice, they may be barred from doing so anyway by state officials. The restrictions aim to prevent voter intimidation or voting bribery, both practices that are prohibited under federal law. But the state policies becomes more gray when a photographer isn't participating in those activities.
Election law on what's allowed at polling places has not kept up to reflect the ubiquity of smartphones. Instead, secretaries of state and other officials are left interpreting outdated statutes and creating policies that are often unevenly applied and confusing for ordinary voters to figure out. They not only vary from state to state, but also from precinct to precinct.
In Washington, D.C., for example, there is no law saying that Lowenstein couldn't take a picture of her ballot. The D.C. Board of Elections, however, has a policy against it and puts up signs saying cell phones aren't allowed, which also explains why Huertas wasn't able to check his device when voting. There's no real penalty if you break the rule, except being told to stop what you're doing and the ensuing frustration.
Indeed on Saturday, the last day of early voting in D.C., voters standing in line at a polling place in the upper northwest portion of the city were told by a worker to put away their phones while they waited to cast a ballot. They did so, grudgingly, with one woman asking why.
'A number of reasons,' the poll worker explained, eventually mentioning the 'privacy of voters' and noting that cell phones usually have cameras these days.
New Hampshire implemented a law this year that makes it illegal to share a photo of your own ballot, with a fine up to $1,000. The American Civil Liberties Union is now challenging that law, on the basis that it violates freedom of speech. But in fact, many states ban sharing your ballot, even if they don't specify that the law extends to Twitter.
Reid Magney, a spokesman for the Wisconsin Government Accountability Board, told The Huffington Post that while there is no specific law against taking a photo of your own ballot in the state, 'We advise voters not to take pictures of their completed ballots, let alone post them Facebook or Twitter.' That's because under Wisconsin's election fraud law, it is a class 1 felony to intentionally show your marked ballot to another person. Magney said that people still do photograph and share pictures of their completed ballots, and he is not aware of anyone having been prosecuted by a district attorney.
Andy Sellars, a fellow at Harvard University's Berkman Center for Internet and Society, put together a chart in 2012 showing which states have laws that actually prohibit taking photos of ballots or polling places. In short, very few do.
'We should have clarity here,' said Sellars. 'The danger when you have an ambiguous law in the states is it could be used for oppressive or unbalanced ends.'
Most of the rules that do exist were put in place with the best of intentions, meant as measures to preserve the integrity of the voting process. Preventing the photographing of ballots, officials argue, maintains ballot secrecy and discourages vote-buying schemes, where a voter can take a photo of a marked ballot to prove he or she cast the right vote in order to get the payday.
'I certainly think it's a good thing to prohibit photographing ballots (including absentee ballots),' said University of Florida political scientist Daniel Smith. 'If voters are able to photograph their ballots, they have a greater likelihood of being compensated for their vote, as it allows them to provide documentary proof to ballot brokers, or bolleteros as they are known in south Florida.'
Officials also want to avoid a scenario where so-called 'poll watchers' stand and take pictures to intimidate voters from turning out. Deval Patrick, now the Democratic governor of Massachusetts, wrote to the Mississippi secretary of state in 1994 about the issue. At the time, Patrick was assistant attorney general for the Civil Rights Division at the Department of Justice.
The Justice Department's lawyers, Patrick wrote, believed that 'the actions of white people in videotaping black voters at or near the polls could constitute a violation' of the Voting Rights Act, calling them 'thinly veiled attempts to intimidate black voters at the polls.'
Banning photography does raise some First Amendment concerns, said David Greene, senior staff attorney with the Electronic Frontier Foundation, a nonprofit that defends civil liberties and free speech. He noted that after the Supreme Court ruled in Burson v. Freeman that a 100-foot buffer zone for campaigning did not restrict free speech, many legislatures took that decision to mean that it was permissible to restrict First Amendment rights on some level around polling places.
Greene added that while it's one thing to make sure people are not pressured while voting, it's another to forbid them from photographing their ballots, when they can go tell their friends how they voted anyway. 'I don't think you should be able to restrict that type of stuff,' he said.
But Marc Rotenberg, executive director of the Electronic Privacy Information Center, a nonprofit which defends privacy and free speech, said that forbidding tweeting a photo of your own ballot is 'actually a good restriction from a voting fairness perspective.'
'I imagine it's tempting to show others how you voted, but it is contrary to a theory of democratic government that recognizes the need to safeguard votes for unpopular candidates,' he added.
Jerald Lentini, general counsel at the Bulldog Finance Group, which raises money for campaigns, said a good reason to change the laws on technology at the polls may simply be that they're already being 'regularly broken by people who simply don't know that they're committing a crime.'
'I don't know of any prosecutions for posting images of a ballot online, but I see people on Facebook doing it every single election. A lot of voters are very proud to cast ballots, especially when they feel strongly about a particular race, and they want to share that pride with their friends online,' she said.
There's also the issue of possible malfeasance. While reporters are often -- but not always -- granted special permission to record and photograph at polling locations, more citizen journalists are now capturing events and sharing them online. Sellars said barring the public from being able to share problems on social media could be harmful.
'Obviously if there's a problem with how a polling station is conducting the election, that is an important thing for us to know very early or after an election,' he said.
Penalties in states where there are laws prohibiting photographs at the ballot box range from misdemeanors to Wisconsin's class 1 felony. In places where the law is less explicit, violators will usually just be told to delete the picture and/or asked to leave. But the law isn't always enforced.
Suzanne, who asked that her last name not be used, voted in northern Virginia in 2011. She brought her son, who was then four months old, with her, and a polling worker agreed to take a picture of her with her 'I Voted' sticker next to the optical scanner. Virginia, however, does not allow polling place photography.
In Louisiana, the state election code specifies that no one, including a voter, can 'allow a ballot to be seen' by others. Violating this provision could result in a fine up to $500 and/or up to six months in jail.
But Meg Casper, the press secretary for Louisiana Secretary of State Tom Schedler (R), acknowledged that this law has not kept up with changing technology.
'Obviously, this law was written before the age of social media, so we do receive many reports of individuals posting their ballots on Facebook, Twitter, etc.,' she said. 'Our response has been to remind voters that their vote is private.'
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Below are the laws and policies on taking photos in polling places in each state, based on the statutes and the responses received by The Huffington Post from government officials. These are rules that apply to regular voters, not reporters, who often have additional privileges. We marked a practice as 'banned' whether it's prohibited by state law or by election officials.
In some cases, a state may allow photographing a blank ballot but not a completed one. In those cases, we still marked the law as banning ballot photography.
Finally, if you're intimidating voters or engaging in vote bribery, it's safe to say that you're going to get in trouble no matter what.
Posted by Unknown on Monday, November 3, 2014 - Rating: 4.5
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