Federal Courts: First Amendment Free Speech Protects Ballot Selfies, Updated

In the 19th century, the State of Michigan passed a law making it a crime to expose a marked ballot. A violator would face a 90 day jail sentence and the ballot would be rejected from the election.

UPDATE: The decision below was overturned by an appeals court [PDF] on October 28. The lawsuit was too close to an election and challenged laws too old to be such an emergency:

Timing is everything. Crookston’s motion and complaint raise interesting First Amendment issues, and he will have an opportunity to litigate them in full—after this election.

Today, a federal judge told Republican Secretary of State Ruth Johnson that she is not allowed to enforce the law or related rules because it is likely that the First Amendment protects this as free speech.

Joel Crookston was concerned that he would become a target of the criminal law, so he sued the state with the help of group Pillar of Law. From the decision [PDF]:

The Court determines that the parties presented sufficient documentary evidence upon which to base an informed–albeit preliminary–legal conclusion on these claims, to wit: that Plaintiff has borne his burden of demonstrating a substantial likelihood that the two state laws, and corresponding rules, are unconstitutional under the First Amendment.

A final ruling will come later, likely well after the 2016 election is completed.

Part of the Michigan law in question reads:

If an elector shows his or her ballot or any part of the ballot to any person other than a person lawfully assisting him or her in the preparation of the ballot or a minor child accompanying that elector in the booth or voting compartment under section 736a, after the ballot has been marked, to disclose any part of the face of the ballot, the ballot shall not be deposited in the ballot box, but shall be marked “rejected for exposure”, and shall be disposed of as are other rejected ballots. If an elector exposes his or her ballot, a note of the occurrence shall be entered on the poll list opposite his or her name and the elector shall not be allowed to vote at the election.

Ruth Johnson claims that the law protects elections from vote buying and coercion, but the court finds no evidence to support these claims. Rather, Ruth Johnson provides “evidence merely of vote-buying schemes, unrelated to ballot photography.”

The court also blocks enforcement of this state rule about cameras:

Persons shall not use video cameras, cell phone cameras or video recording, cameras, television or recording equipment in the polling place, except that broadcast stations and credentialed media may be permitted to briefly film from [sic] public area. Personnel working for broadcast stations or media hall not set up cameras in the polling place.

The court describes the rule as a “blanket prohibition on citizen photography.” The court also quotes the plaintiff attorneys for Joel Crookston:

Rather, according to Plaintiff, the Secretary’s “outdated rule cuts off the most modern, relevant way news is delivered—through social media networks—while favoring the established, institutional, and antiquated press” … Plaintiff opines that it serves “no interest to place a blanket prohibition on citizen photography” where “a typical citizen is no more or less of a threat than credentialed media.”
Finally, the court also blocks a cell phone prohibition.
The group Pillar of Law recently gained a similar court victory blocking a New Hampshire law. Another action has been filed to challenge laws in Colorado.