Judge allows Colorado voters to post ballot selfies online
November 6, 2016
DENVER — A judge ruled that Colorado voters can post ballot selfies on social media sites, differing from recent federal court decisions on the laws just before Election Day.
U.S. District Judge Christine Arguello ruled late Friday that Colorado can't enforce an 1891 law preventing voters from disseminating their marked ballots. The ruling said polling places may still enforce local rules banning photography due to privacy concerns. However, no resident will be prosecuted for sharing images of completed ballots on social media.
The order comes the same week that judges in New York and California upheld bans, saying changing the rules so close to the election would create confusion for voters and polling place workers.
Colorado election officials testified about those concerns. The judge said her ruling does not change existing elections laws.
Denver's district attorney argued he would not bring charges against anyone who posted a ballot selfie.
But the judge said the fear of prosecution alone, and the possibility that investigators would demand a selfie be deleted, is enough to chill free speech and could hinder political organizing via social media at a key time in the election.
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"By issuing an injunction in this case, Coloradans get what they are entitled to—clarity on an issue that implicates fundamental constitutional rights," Arguello wrote in her ruling.
A recent review by The Associated Press showed ballot selfies are legal in 20 states and the District of Columbia, illegal in 17 states and the legal status is mixed or unclear in the rest.
Colorado's Deputy Secretary of State Suzanne Staiert stood by the ban. "We still believe it is a good protection against intimidation and vote buying and a number of other vote fraud crimes," she said after the ruling Friday night.
Colorado Sen. Owen Hill, a Republican who challenged the selfie ban, called the law archaic and potentially damaging to efforts to boost voter turnout.
"There is something special about highlighting to people, 'Here's who I voted for, I'm proud of it,'" said Hill, who takes his four children into the voting booth with him and sees no difference between that perfectly legal practice and sharing a ballot selfie on Instagram.
On the other side, economist Jeffrey Zax testified that ballot selfies have the potential to revive 19th century-style vote-buying, though he could point to no modern evidence of it.
"When it's difficult for someone to prove the way they voted, it's much harder to sell your vote," Zax testified. "With a cellphone camera, ballot secrecy is eradicated."
Arguello's ruling states voters can still be prosecuted for using images as proof in vote-buying schemes.
The ruling in Colorado is temporary and doesn't mean that the ban won't be upheld by a court later.