In the first iteration of what is expected to be a hot constitutional issue, a Federal court in New York upheld New York’s ban on ballot-box selfies. The court found the law triggered strict scrutiny as the result of its suppression of voters’ political expression, but that it was sufficiently narrowly tailored to further compelling government interests in accordance with First Amendment precedent.

The plaintiffs argued that the ballot photo ban chills their freedom of political expression, and that ballot-box selfies promote the validity, execution, and conviction behind their votes. The government countered with concerns of voter intimidation and vote buying arising from voter social media photos, presenting documented examples of threats of eviction, loss of employment, and violence, as well as subtle social pressures from friends and family to vote in particular ways.  The court agreed with the government, and also noted that allowing ballot-box selfies would materially increase wait times at certain New York City polling sites and stifle voter turnout in those areas.  This latest First Amendment battle is not over, however; counsel for the plaintiffs stated they “fully expect to appeal” the decision to the Second Circuit.

Takeaway: Although New York’s ballot-box selfie ban was deemed constitutional, the law is far from settled across the United States.  Currently, nineteen states have similar laws banning ballot photography and thirty-one states either allow it or have ambiguous laws.  The expected New York appeal could drastically narrow or expand allowable voter expression under the First Amendment.