Campaigns & Elections
Ballot selfies are still out this election season
The New York City Board of Education is enforcing a century old law that prohibits voters from taking a picture of their ballot – even those on social media.
On June 18, the first day of early voting, Christopher Leon Johnson went to his local polling place and filled out his Democratic primary ballot. Then he snapped a photo of the ballot and posted it on Twitter.
“I decided to post it because I wanted to show my friends and family who I voted for,” he told City & State in a direct message. “I believe that people should vote and their vote matters.”
Soon, Johnson’s tweet attracted the attention of the New York City Board of Elections. The BOE’s official twitter warned Johnson that his tweet had technically violated the law: “Thanks for voting! Displaying a voted ballot to anyone is a misdemeanor in NYS. Pls remove pictures.”
Spooked, Johnson quickly deleted the tweet.
“I deleted the post because I thought that they [were] going to act on their threats and sic the law against me,” he said.
The response on Twitter to the city BOE’s tweet instructing Johnson to delete the photo of his ballot was universally negative, and at least two voters posted photographs of their own ballots in an apparent signal of support for Johnson.
Though it is rarely enforced, there is currently a law on the books that criminalizes the display of a completed ballot. According to Title 17, Section 130, Subsection 10 of New York State Election Law, “Anyone who…shows his ballot after it is prepared for voting, to any person so
as to reveal the contents, or solicits a voter to show the same … is guilty of a Misdemeanor.”
The law, which dates to the late 19th century, was originally intended to protect the privacy of the voting booth at a time when politicians would often seek to coerce voters through bribes and intimidation.
But it has become newly relevant within the past decade as more voters have taken to social media to post so-called “ballot selfies” documenting their votes.
In 2012, attorneys with the New York State Board of Elections determined that ballot selfies did not violate the law, because election law 17-130(10) only applied to the sharing of physical ballots, not to photos of ballots.
But this interpretation of the law did not last. In 2016, spokespeople for both the city and state BOE told Gothamist that ballot selfies were not permitted in New York.
In advance of the 2016 presidential election, three New York City voters filed a federal lawsuit against the city and state BOE, in an attempt to get election law 17-130(10) overturned on First Amendment grounds. In that case, known as Silberberg, both sides agreed that the election law outlawed ballot selfies. The only question was whether the law violated the First Amendment.
Although lawsuits against similar election laws in other states had succeeded, this one did not. In 2017, federal district judge P. Kevin Castel ruled that New York’s prohibition on ballot selfies does not violate the First Amendment.
As far as the state Board of Elections is concerned, that’s the last word on the subject.
“Silberberg is the current state of the law. Posting ‘ballot selfies’ is illegal in New York,” Jennifer Wilson, a spokeswoman for the state BOE, told City & State. “The State Board of Elections continues to follow the Court’s decision and advises the same.”