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 Early voting is upon us in Illinois. Mail-in ballots are free
to fly.
But don’t dare take a picture of your vote.
Snapping a photo of your filled-in ballot and posting it on Facebook or
Instagram is technically a Class 4 felony in Illinois, which comes with a prison
sentence of one to three years. According to the Illinois Election Code, anyone
who “knowingly” casts his or her ballot in a way that “can be observed by
another person” is breaking the law.
While more than a dozen other states also forbid the ballot selfie, Illinois
appears to be the only one where the “offense” is clearly classified as a
felony. But it seems no one on record has been arrested for it.
So why is this still on the books?
The intent behind the law is pretty straightforward. These sorts of rules are
meant as a firewall against vote-buying: Show me a photo of your ballot, I pay
you.
Of course, there are already plenty of other laws in Illinois that explicitly
outlaw vote-buying.
Sangamon County Clerk Don Gray knows that social media is a valuable tool to
help drive voter turnout, so he devised a clever workaround, setting up a
red-carpet area of sorts where voters can take photos of themselves at the
polling place and share their civic pride.
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Gray still backs the ban, though.
“For me it’s not really about vote-buying even though there are
valid concerns there,” he said, “it’s more about a disruption of
being in a voting booth much too long.”
But that kind of reasoning isn’t likely to pass constitutional
muster.
There are clear First Amendment issues with outlawing this kind of
political speech.
In 2016, a federal judge struck down New Hampshire’s ballot selfie
ban, deciding in response to vote-buying concerns that the ban was
“burning down the house to roast the pig.”
From 2015 to 2016, Utah, Nebraska, Hawaii and California all passed
legislation allowing voters to photograph their ballots.
And Illinois came pretty close to overturning its ban in 2017. State
Rep. Emanuel Welch, D-Hillside, filed a bill that allowed voters to
take photos of their ballot as long as they didn’t accept any money
in exchange. The House overwhelmingly supported the measure, which
passed 97-14. But the Senate never took a vote on it.
The secret ballot is a crucial component of any democracy, and the
law should always protect voter privacy. But if someone wants to
express his or her choice for office, the law shouldn’t prevent
that.
For some, the ballot selfie is the new “I Voted” sticker. Legalize
it.
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