Facts
- New York has long required ballot secrecy and has, since the late 19th century, barred voters from showing a marked ballot to another person in a way that reveals how the voter voted.
- The ballot-secrecy rules arose from efforts to stop voter coercion and vote buying by making it difficult to verify how an individual voted inside the voting booth.
- Eve Silberberg, a New York voter, wanted to take and post a “ballot selfie,” meaning a photograph of her completed (marked) ballot, and share it on social media in connection with the November 2016 election.
- The Board of Elections of the State of New York (BOE) interpreted and enforced New York’s ballot-secrecy and ballot-showing provisions to prohibit voters from taking and disseminating photographs of their marked ballots (the “ballot-selfie ban”).
- Silberberg sued the BOE under 42 U.S.C. § 1983 seeking to enjoin enforcement of the ballot-selfie ban, alleging it violated the First Amendment.
- At a bench trial, Silberberg argued that New York’s interests in preventing coercion, vote buying, and related fraud could be served by a narrower rule that punished only ballot selfies taken or shared for fraudulent purposes.
- The BOE responded that a categorical prohibition was needed to preserve ballot secrecy and to prevent vote verification schemes made easier by smartphones and social media.
- The BOE introduced evidence of historical and modern fraud schemes and argued that the risks of coercion and purchased votes remain real, including evidence connected to ongoing litigation.
Issues
- Whether New York’s application of its ballot-secrecy laws to prohibit voters from photographing and posting images of their marked ballots violates the First Amendment.
Decision
- The court upheld New York’s application of its ballot-secrecy provisions to ban ballot selfies.
- The court rejected Silberberg’s First Amendment claim and entered judgment for the BOE, denying injunctive relief.
Legal Principles
- A state has a compelling interest in protecting the secret ballot and in preventing vote buying, voter coercion, and related election fraud.
- Restrictions tied to the mechanics of voting, especially within the polling place and the act of casting a ballot, may be upheld when they reasonably serve election integrity and ballot secrecy interests.
- A prohibition on displaying or photographing a marked ballot can be justified as a means of blocking “proof of vote,” which is the mechanism that makes bribery and coercion enforceable.
- The First Amendment does not require the government to replace a clear, prophylactic rule with an intent-based standard when proving intent would be difficult and the narrower rule would be less effective at preventing the targeted harms.
- When the burden on expression is limited to the time and place of voting and the state’s anti-corruption and secrecy interests are strong, a ballot-selfie ban may be constitutional even though it prevents a voter from using a marked ballot image to communicate political support.
Conclusion
The Southern District of New York held that New York may enforce its long-standing ballot-secrecy laws to prohibit voters from photographing and sharing images of their marked ballots, concluding that the ban is justified by the State’s strong interests in ballot secrecy and in preventing vote buying, coercion, and other fraud, and that the First Amendment does not require an intent-based exception.