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Taking a Ballot Selfie on Election Day Is Still Illegal, Judge Rules

By Noah Hurowitz | November 4, 2016 2:21pm | Updated on November 7, 2016 8:41am
 Voters cast their ballots in the primary election on Tuesday, June 28, 2016.
Voters cast their ballots in the primary election on Tuesday, June 28, 2016.
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NEW YORK CITY — New Yorkers will not be allowed to take photos of their marked-up ballots on Election Day after a federal judge ruled that a temporary order allowing ballot selfies would “wreak havoc” on voting day given the tight timeframe between now and Tuesday.

Judge P. Kevin Castel on Thursday ruled that a 100-year-old law banning people from photographing or sharing their marked ballot would stay in effect on election day, dashing the hopes of three New Yorkers who argued that the ability to share ballot photos is an issue of free speech.

The plaintiffs were hoping the judge would issue a temporary order invalidating the law in time for New Yorkers to use ballot photos to share their voting choices, but Castel said such a move would be disastrous for the Board of Elections workers organizing polling places.

Furthermore, Castel said, more time is needed to assess the original “precise evil” that led to the law being put on the books in 1909 as part of an effort to stem vote-buying and other election-day fraud.

“Not only would a preliminary injunction wreak havoc on election-day logistics, real concerns exist about the delays and privacy intrusions that ballot selfies could cause,” Castel wrote in his decision. 

The lawsuit is far from dead, however, according to Leo Glickman, the attorney for the plaintiffs.

“Of course we’re disappointed, but we’re glad we were able to bring this issue to public attention,” Glickman said. “We plan to amend our complaint and move forward.”

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.

“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,’” John Conklin, a spokesman for the state Board of Elections, told DNAinfo on Oct. 26, when the lawsuit was filed.

“It was designed to prevent vote buying and it was very effective,” he added.

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 lawsuit.

Glickman said he is hopeful that they can successfully challenge the law in time for the 2017 mayoral election, and added that the issue has gotten some support from legislators. In a press release last week State Senator Brad Hoylman and Assemblywoman Linda Rosenthal announced plans to introduce a bill making it legal to photograph a marked-up ballot.

“Young people, who are dramatically underrepresented at the polls, but increasingly people of all ages, use social media sites, such as Instagram, Twitter, Facebook and Snapchat, to promote products and people,” they said in a statement. “Why not use social media as a tool to help promote voter turnout?”

Rosenthal and Hoylman added that their bill, which has not yet been introduced, would maintain provisions meant to prevent coercion, intimidation, and vote-buying, but did not go into specifics.