NEW YORK CITY — Just ahead of election day on Nov. 8, a trio of New Yorkers are pushing back against a state law that makes it a crime to photograph ballots in a polling booths, saying it violates their first amendment rights.
The suit against the New York State Board of Elections, filed in Manhattan federal court on Wednesday by attorney Leo Glickman, argues that taking a photo of a marked-up ballot is valid expression, protected under the First Amendment, with the potential to convey strong support for a particular candidate, or strong disapproval of all candidates if the selfie-taker writes in their choice.
In New York — and 15 other states, according to the Associated Press — it is illegal to take a photo of a marked up ballot, punishable as a misdemeanor with up to a year in jail and a $1,000 a fine.
Glickman said he has never heard of anyone getting in legal trouble for taking a photo of their ballot, but that was beside the point.
“Our main concern is that it chills free speech,” he said. “With this law on the books, and with the Board of Elections advising people it’s illegal, that deters people from engaging in conduct that is permitted under the First Amendment.”
The statute was signed into law in 1909 as part of a broader measure to prevent voter fraud, according to BOE spokesman John Conklin.
And according to Conklin, the law, which does not prohibit a selfie as long as the photo doesn’t include a marked up ballot, was very successful.
“The way the law is structured it prevents you from showing proof to your union official or your boss like ‘here, I did what you asked me to do, now give me my $20, or whatever,’” Conklin said. “It was designed to prevent vote buying and it was very effective.”
Conklin, who said he hasn't heard about anyone being prosecuted for photographing their ballots in at least 70 years, declined to comment on the pending lawsuit.
For Glickman and his plaintiffs, the issue of free speech looms larger than fears of coercion or voter fraud.
Rebecca White, one of the plaintiffs, said she first came across the law in 2006, when she was working on the campaign of a candidate who got a talking-to from poll workers after the candidate took a photo of herself voting for herself.
Like Glickman, she said she’s never heard of anyone actually getting in legal trouble for taking a photo in the polling booth, but for White, it’s the principle that counts.
“If something is a law, that means it can be prosecuted,” she said. “Just because it’s unlikely doesn’t mean an unjust law should remain on the books.”
Glickman said he was hopeful that the lawsuit would be resolved before election day. A judge will hear the suit Nov. 1, he said.