People vote early at the offices of the Los Angeles County Registrar-Recorder and County Clerk in Norwalk, California, on Nov. 05. Credit: TNS
Ohio voters hoping to hit “post” after hitting the polls on Tuesday might want to think twice before sharing those Election Day selfies.
Varying state laws pertaining to so-called “ballot selfies” have been increasingly highlighted in the media with the rise in popularity of the digital self-portrait. More attention was brought to the issue after singer Justin Timberlake posted to social media a selfie of himself voting early in his home state of Tennessee.
The singer and actor later found out Tennessee prohibits taking photos in polling locations, and deleted the posts.
Ballot selfies are illegal in 17 states, legal in 20 others, as well as in Washington D.C., and unclear in the remaining 13, including the state of Ohio, according to an Associated Press report published Friday.
The prohibition outlined in Ohio Revised Code bars voters from showing their marked ballots to others “with the apparent intention of letting it be known how the elector is about to vote.”
This would include taking and sharing a picture of oneself in the voting booth in a way that displays how one marked a ballot and voted. To do this is a fifth-degree felony.
Although the state law is clear, how it will be applied across the state remains foggy.
The law was enacted to guard against voter intimidation, and avoid instances in which voters could be coerced to show how they voted to an outside party, such as an employer, union or family member.
“The laws’ intentions are good,” said Joshua Eck, spokesman for Ohio Secretary of State Jon Husted. “It’s to prevent anybody from being in a situation where they feel like they have to show their ballot or prove who they voted for to anybody.”
However, the drafters of what has been referred to as the “ballot selfie law” could not have foreseen in 1997 the current social media environment. And the inclination among some, including first-time voting millennials, to share pictures online of themselves in new or novel situations has forced election officials in Ohio to look at the law through a new lens.
“The law was intended to prevent voters from feeling intimidated on those fronts,” Eck said. “How it applies to social media is a much tougher question.”
In Ohio, the duty to ask that question will fall on each of the state’s 88 counties.
Locally, voters are being asked to refrain from taking ballot selfies, said Franklin County Board of Elections Director Ed Leonard. He added that the county would intervene if there was indication that someone had taken and shared a ballot selfie against their will, possibly as a means of providing evidence of how they cast their ballot to an influencing party.
“If it’s brought to our attention, or we’re out and we see it, then we will have to refer it. We can’t just ignore it,” Leonard said. “Then, it will be on the prosecutor as to whether or not they want to take action.”
But, without evidence of fraud or “improper” motives, “it is not likely that charges would be filed against an individual who posts a selfie on election day,” according to an email from Franklin County Prosecutor Ron O’Brien’s office.
The Ohio Attorney General’s Office would also have jurisdiction to initiate an investigation into a complaint of an alleged crime under Chapter 35, the ORC elections chapter.
Ohio Attorney General Mike DeWine spokesman Dan Tierney said his office was not aware of a single ballot-selfie case being referred to it for investigation. He added that a prosecution of such a case would prove difficult without evidence of intimidation or an attempt to undermine the electoral process.
“There’s an old-fashioned phrase: Discretion is often the better part of valor,” he said. “We would certainly encourage Ohioans to follow the law.”
With Ohio State and a sizable young-adult population residing in Columbus, Leonard said he wouldn’t be surprised to still see ballot selfies posted to Twitter or Instagram on Election Day.
The Buckeye State, though, has no need to worry about Eric Vinyard, a fourth-year in philosophy and public affairs. He has no plans to bring a selfie stick to the polls on Tuesday. Vinyard said he believes the prohibition on ballot selfies serves a legitimate purpose.
“It doesn’t bother me in the slightest. There are plenty of instances in which photography in certain places, at times, is not allowed,” he said. “Maybe it’s because I’m not a huge fan of selfies, myself, but I think the reasons for why the law was put in place are valid.”
Similar laws in other states have recently been challenged, though. Voters in Colorado gained the ability to post ballot selfies without fear of prosecution in a court decision ruled Friday, while California and New York both upheld bans in rulings made earlier that week.
In Ohio, state representatives Mike Duffey, a Republican representing Worthington, and Niraj Antani, a Republican representing Miamisburg, introduced legislation on Oct. 25 that would allow photographing and sharing marked ballots.
“In my mind, Ohio’s law is clearly unconstitutional,” Duffey said in a release. “The federal court in New Hampshire agreed. Some folks say, ‘Well, this law is never enforced anyway, so why change it?’ but I respond, ‘Because it hurts our justice system to have laws that are unenforced.’ It’s not supposed to be a joke — we should work to repeal unconstitutional laws. Period. This is free speech.”
But sensitive scales weigh freedom of speech against selfie prohibition, and University of Kentucky law professor Joshua Douglas said he recognizes strong arguments on both sides. Douglas, who specializes in election law, said a state would need to present strong evidence that validates its role in prohibiting certain speech to prove the law’s constitutionality.
“As technology evolves and our voting process evolves with it, we’re going to be constantly re-examining the various rules for running an election,” he said. “I think this is very natural.”
Duffey and Antani’s State House Bill 609 has no chance of reaching the governor’s desk by Tuesday, though it still could have a chance to legalize ballot selfies in the future.
Until legislation alters Ohio election law, Eck advised voters to play it safe in the polling booth.
“What we recommend, in our office, is if you want to take a picture and show your voter pride, then take a picture of yourself with your ‘I Voted’ sticker or take a picture of yourself outside your polling location,” he said.
