Your hair might look perfect. You might feel the spirit of democracy coursing through your veins. But you should still think twice before posting a selfie with your completed ballot on or before Election Day.
Ballot selfies are against the law in 13 states, according to a recent report from the nonprofit organization Lawyers for Good Government. Among the states with a ban is New York, whose attorney general, Letitia James, reminded voters last week to keep their marked ballots to themselves.
Seven states allow selfies with mail-in ballots, but not at polling locations, and nine have laws that are unclear, the report said.
Why can’t we all just smile for the camera, the way voters in Alabama, California and 23 other states can without issue? The answer has its roots in longstanding debates over the sanctity of the voting booth and the protection of political speech.
“For some folks it may seem really stupid, like, I just want to take a selfie,” said Anthony Michael Kreis, a constitutional law professor at Georgia State University. “But it is a serious issue.”
State laws intended to protect privacy in the voting booth date to the late 19th century, when secret ballots were introduced with the goal of preventing vote buying and voter coercion. In the mid-2010s, those laws collided with the smartphone era.
The American Civil Liberties Union of New Hampshire challenged a state law banning ballot selfies in 2014, claiming that it restricted free speech. Election officials there countered that the law was still necessary to prevent voter intimidation.
The New Hampshire ban was officially overturned in 2016. States including Colorado and California later amended their laws to be friendlier to ballot selfies. In other states, including New York, bans were upheld.
Voting selfies — sometimes featuring marked ballots, but oftentimes not — have become a favored tool of celebrities hoping to encourage voting among their followers: Lady Gaga, Whoopi Goldberg, Blake Lively and Jennifer Aniston all posted them during the 2020 election.
But the singer Justin Timberlake ran afoul of a ballot-selfie ban in Tennessee in 2016, telling Jimmy Fallon afterward that he had “no idea” that his ballot box photo shoot had been illegal. Although his misstep became a social media punchline, Mr. Timberlake was not ultimately investigated by the Shelby County district attorney.
State laws against ballot selfies are typically “more bark than bite,” said Khadijah Silver, the supervising attorney for civil rights at Lawyers for Good Government. Last year, a Wisconsin judge dismissed a felony charge against a school board candidate who had posted a ballot selfie to Facebook.
Still, Mx. Silver and others argue that laws prohibiting ballot selfies are an outdated infringement on the right to political speech that can serve to intimidate voters, especially young people and people of color, who could be put off by the specter of fines or prosecution. They added that there was no evidence that ballot selfies had ever been used as “receipts” in illegal vote-buying transactions — a concern commonly cited by proponents of the bans.
“It’s a problem of the laws not keeping up with technology, not keeping up with human behavior,” Mx. Silver said. “We need to be getting rid of these laws in order to establish a healthier, more welcoming culture in the voting booth.”
Some scholars disagree. The U.C.L.A. law professor Richard L. Hasen, a vocal critic of ballot selfies, argued in The New York Times’s opinion section in 2016 that laws against them remained necessary to shore up election integrity.
“There are a ton of ways to express your support for voting for or against a candidate without taking a picture of the one thing which can serve as proof of how you voted,” he wrote, “and thereby open the window up for vote buying or coercion from your employer, spouse, religious leader or union boss.”
The 2024 election is accompanied by its own set of concerns, Professor Kreis said. He pointed to Elon Musk’s recent $1 million, sweepstakes-style payouts to registered voters in battleground states, which drew criticism from legal experts who said it might violate a federal law against paying people to register to vote. (Philadelphia’s district attorney sued Mr. Musk over the scheme on Monday, calling it an “unlawful lottery.”)
Professor Kreis is not convinced that ballot selfies are a threat to fair elections. At the same time, he said, “a nuanced conversation needs to be had about exactly why these laws are put in place, and if there are alternative and less restrictive means of achieving this anti-corruption endeavor without restricting free speech,” he said.
Professor Kreis, who lives in Georgia, one of the states where it is illegal to photograph a ballot at the polls, urged his followers on X to post a cheery illustration of a peach rather than the far more fraught ballot selfie.
“I think that there are a lot of ways that people can be creative,” he said.
The post Are Ballot Selfies Legal? That Depends on Where You Live. appeared first on New York Times.
