Polling place selfies and ballot pics: Are they really illegal?

We often comment and even make videos about “weird laws.” Some laws regarding what you can do with your ballot and its vote maybe aren’t weird, necessarily, but are laws which probably should be challenged nonetheless.

In Florida, Section 102.031, Florida Statutes, is entitled, “Maintenance of good order at polls; authorities; persons allowed in polling rooms and early voting areas; unlawful solicitation of voters.” Paragraph 5 states, “No photography is permitted in the polling room or early voting area.”

Further, this next law applies to the privacy of your own home, social media and everywhere else. Section 104.20, Florida Statutes, is entitled, “Ballot not to be seen, and other offenses,” and states, “Any elector who, except as provided by law, allows his or her ballot to be seen by any person… (or) endeavors to induce any elector to show how he or she voted… is guilty of a misdemeanor of the first degree.” Yikes. That includes any ballot, anywhere.

It goes even further. Share someone else’s ballot on twitter, instagram or facebook or “like” or “retweet” it such that it is shared on someone page and, well, you may be an accomplice under Section 104.045, Florida Statutes:

Disclosing how elector votes.—Any election official or person assisting any elector who willfully discloses how any elector voted, except upon trial in court, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

So, there it is. The use of a camera, and thus the “selfie” or “ballot pic,” is illegal. Posting or publishing a ballot is illegal. And disclosing how someone else voted… is illegal. These laws do not contemplate social media at all and we feel an exception is in order.

Why prohibit the “selfie”?

Well, the first concern is the “other-ie.” Voting officials certainly want to avoid a scenario where so-called “poll watchers” stand and take pictures to intimidate voters from turning out or otherwise capture who is voting. Media should also be off limits.

Also, another article said, “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.” Really? If someone is illegally selling a vote, or forcing you to vote a certain way, the problem is more systemic and the violation of the law more extreme than to make the photo of the vote the actual problem. Further, one could fill out a ballot, take a photo and ask for another one. You are allowed to make mistakes and change your mind until you hand over the ballot.

We stand behind anyone challenging these laws, but particularly the law in Florida where we predominately practice. We think a voter should be able to solely capture their own photo while voting or their own ballot’s photo- but literally nothing else. Your rights stop where another person’s rights start.

We also stand behind the confidentiality of the voter who DOES NOT want others to know who they voted for or to be the subject of family or workplace intimidation. While we agree this could lead to more people being requested to photograph their votes, other laws apply to this situation and one can request another ballot if they want to vote their true conscious before turning it in no matter what was on the photo.

The trend in the law agrees with us. Most states allow personal photos. For instance, New Hampshire’s ban on ballot selfies was ruled unconstitutional, saying it suppressed a large swath of political speech and there was no evidence to support the state’s concerns. Specifically, the judge said to ban was a “content-based restriction on speech because it requires regulators to examine the content of the speech to determine whether it includes impermissible subject matter.” Our U. S. Supreme Court has laid down the law of the land when it comes to when speech regulation “target[s] speech based on its communicative content,” courts must subject it to strict scrutiny—meaning it must be narrowly tailored to further a compelling government interest.” So, yes, we have the CONSTITUTION on our side. I am composing my Hamilton-esque rap and dance on this as soon as I am done writing this blog.

Federal judges have struck down bans in Indiana, and rules have been changed in places like Rhode Island, but in many states it’s still a violation that carries potential fines or jail terms. California Governor Jerry Brown signed a bill, repealing a 125-year-old law barring voters from showing people their marked ballots. It goes into effect after the November election, but already isn’t being enforced.

When I went to early vote in Jacksonville, Florida on October 26, 2016, I went with full intent to break the law and I did. Here’s proof:

I call it my own “civil disobedience” and American Right to, well, exhibit Constitutional Thug Life. If there is a law enforcement officer, prosecutor or judge wanting to charge me, I am okay with that. Let’s just do it quick. I have appeals to draft. We will win State of Florida v. Phillips. I guarantee it… no, actually the U.S. Constitution guarantees it.

If you post a photo of just you, just your ballot or just you and your ballot, with nothing in the background, and get cited or arrested, we will represent you pro bono (for free) and get this law changed. We can’t be governed by overbroad, unconstitutional laws.

It is important to note, that voter intimidation, suppression, interference or fraud is serious. We point you to these statutes if you think you have been a victim:

• Fla. Stat. § 104.0515 – Voting rights; deprivation of, or interference with, prohibited; penalty
• Fla. Stat. § 104.0615 – Voter intimidation or suppression prohibited; criminal penalties.

You can call Florida’s Voter Assistance Hotline at 1.866.308.6739 or Florida’s Voter Fraud Hotline at 1.877.868.3737.

We hope you all vote. It is an important election with strong feelings on both sides. Make sure you get out and vote.

We invite you to review our verdicts, our accolades and awards and what clients have to say about us and give us a call for a free consultation where our lawyers will consult with you personally. John represents clients in Florida, Georgia and Alabama and before the U.S. Supreme Court with passion and compassion. Our firm handles a wide variety of injury and death cases, criminal defense, family law and a host of high profile matters. We can be emailed at help@floridajustice.com or call us at (904) 444-4444 or (912) 444-4444.