LAWSUIT: North Carolina woman challenges state’s unconstitutional ‘ballot selfie’ ban

• FIRE is suing members of the North Carolina State Board of Elections to overturn multiple unconstitutional laws banning photos of official ballots, or “ballot selfies.”
• Under the First Amendment, the government can’t restrict political speech unless it has a compelling reason — and North Carolina doesn’t have one.
• Despite being a crime in 14 states, FIRE’s research shows 1 in 10 Americans, more than 20 million Americans nationwide, say they’ve taken a “ballot selfie.” 

RALEIGH, N.C., Aug. 22, 2024 —  A picture may be worth a thousand words, but in North Carolina, taking that picture could cost you thousands of dollars in fines and jail time.

On March 5, Susan Hogarth voted in the North Carolina Libertarian Party primary and took a selfie with her completed ballot. For good measure, Susan took the picture in front of a sign saying ballot photos were not allowed in the voting booth. She then posted the image to X with a caption endorsing the candidates she voted for and declaring, “Laws against #ballotselfie are bullshit.”

A few weeks later, Susan received a letter from the North Carolina State Board of Elections telling her she committed a crime and demanding she take the post down. The board informed her that taking her ballot selfie was a misdemeanor under a North Carolina law stating “no person shall photograph, videotape, or otherwise record the image of a voted official ballot.” That statute is just one of several that criminalize taking and sharing ballot selfies in the state. These restrictions go beyond just photographing yourself in the voting booth: They even extend to posing with absentee ballots in the comfort of your own home.

Despite the threat of possible jail time and fines, Susan refused to comply. Instead, with the help of the Foundation for Individual Rights and Expression, today she’s suing members of the state board and Wake County Board of Elections to have the unconstitutional statutes struck down as they apply to ballot selfies.

“It would have been easier to just take the post down,” said Susan. “But in a free society, you should be able to show the world how you voted without fear of punishment. Privacy is good for those who want it, openness should be available to those who prefer it.”

FIRE’s latest research shows that photographing your ballot, colloquially known as taking a “ballot selfie,” is a popular form of election-related political speech. Around 1 in 10 American adults — or roughly 26 million people — have taken a ballot selfie at some point in their life.

People taking ballot selfies might be memorializing their first vote as a citizen, demonstrating a protest vote, or (as in Susan’s case) promoting their favorite candidates or political party. And North Carolina knows voters take ballot selfies to express First Amendment-protected political beliefs: During recent elections, the state board said it “respect[s] voters showing their pride in casting a ballot” but nevertheless instructed those who did so by taking a ballot selfie to “delete the photograph.”

“Ballot selfie bans turn innocent Americans into criminals for nothing more than showing their excitement about how they voted, or even just showing that they voted,” said FIRE attorney Jeff Zeman. “That’s core political speech protected by the First Amendment.”

Most states do not ban ballot selfies, and recently many states, including Oklahoma and California, even passed laws affirming voters’ right to take them. But ballot selfies are still illegal in over a dozen states that run the political and geographic gamut — from Minnesota to Texas to New York to Florida.

Map of Ballot Selfie Laws in the United States

North Carolina justified its ban on the theory that ballot selfies “could be used as proof of a vote for a candidate in a vote-buying scheme.” But that justification runs headlong into the First Amendment. North Carolina’s ban targets protected expression based on the message it conveys: How one voted on their ballot. It’s a clear example of what the Supreme Court calls a “content-based” restriction on speech, which is presumptively unconstitutional. That means the ban violates the First Amendment unless the state can provide a compelling reason for the law and prove it is the least restrictive means of accomplishing that goal.

“The burden is on North Carolina to prove it has a good reason to ban ballot selfies and that this is the only way to do it,” said FIRE attorney Daniel Ortner. “The First Amendment protects the millions of voters who are proud to show the world that they actually voted for the people and policies they care about.”

COURTESY PHOTOS OF SUSAN FOR MEDIA USE

FIRE is asking the U.S. District Court for the Eastern District of North Carolina to halt enforcement of the ban before Election Day to ensure voters have the right to take a ballot selfie. In fact, Susan plans to take another selfie, because she’ll appear on the ballot as a Libertarian candidate and wants to promote her candidacy.

“I won’t be bullied over such an innocent and wholesome impulse as sharing enthusiasm for my candidates,” said Susan. “These ballot selfie bans may seem harmless, but they’re just one more way the state attempts to control and muzzle true self-expression while pretending to protect it.”

The Foundation for Individual Rights and Expression (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought — the most essential qualities of liberty. FIRE educates Americans about the importance of these inalienable rights, promotes a culture of respect for these rights, and provides the means to preserve them.

CONTACT:

Alex Griswold, Communications Campaign Manager, FIRE: 215-717-3473; media@thefire.org