Lawsuit claims taking a selfie in the voting booth should be protected free speech

GRAND RAPIDS, Mich. — A recently filed federal lawsuit is challenging Michigan's ban on so-called "ballot selfies" — the use of cameras in voting booths and polling places — arguing it's a violation of free speech.

Attorney Steve Klein with the Pillar of Law Institute filed the suit on behalf of Portage resident and close friend Joel Crookston in U.S. District Court in Grand Rapids on Sept. 9. The suit challenges the restrictions on camera use in voting booths and polling places.

According to state statute, taking pictures or videos in a polling place is considered an "election day offense," with the only exception being for credential news media in limited, pre-determined situations. State law goes even further to stipulate that any ballot shown to someone else other than an individual tasked with legally assisting the voter cast that ballot "shall not be deposited in the ballot box," but instead marked “rejected for exposure," meaning the vote won't be counted.

The misdemeanor crime also carries a potential $500 fine and up to 90 days in jail.

The purpose of the law is to prevent unnecessary ballot exposure potentially leading to vote buying or voter coercion, according to Fred Woodhams, spokesperson for the state bureau of elections.

"The law enforcing the secret ballot has been in effect since 1891," Woodhmans said, claiming coercion and so-called vote buying were problems prior to the creation of laws.

"Ballot secrecy protects voters."


Joel Crookston's 2012 'ballot selfie' post on Facebook (Exhibit B in federal lawsuit).

“There’s a fundamental right we all have as U.S. citizens and the First Amendment is one of our most important rights," Crookston told FOX 17. “In this case, they’re really taking away a lot of people’s rights to do something that’s not dangerous."Crookston said he was unaware he was breaking the law when he posted a picture of his ballot during the 2012 election. The lawsuit stems from the photo posted on Facebook showing Crookston's write-in vote for a friend for a Michigan State Universitytrustee position.

Klein says the court process has been expedited in hopes of getting a ruling before the Nov. 8 general election.

“The people who are doing (ballot selfies) are not doing it to facilitate vote buying or to intimidate other people," Klein said. "They’re doing it to unequivocally express who they voted for and that’s the most important kind of political speech there is.”

Klein calls the argument being made by the state "baseless" and points to a recent federal appeals court decision in New Hampshire ruling that state's "ballot selfie" ban unconstitutional.

“Certainly voter intimidation and distraction are legitimate concerns and people should not be allowed to advocate or threaten people within the polling places, but a ballot selfie doesn’t really get displayed within a polling place, it goes on social media," Klein said.

Upholding a lower court ruling, the decision in New Hampshire called the state's 2014 law an overreaction to an unsubstantiated concern. Photo- and video-sharing appSnapchat even filed a brief in support of the suit in New Hampshire, arguing that ballot selfies are a legitimate means of "express(ing) support for or against a cause or a candidate."