I Asked a Lawyer if It's a Crime to Take a Voting Selfie

All your weird questions about voting—including what happens if you spill coffee on your ballot—answered here.

Allie Conti

Allie Conti

On Monday, singer, actor, and democracy enthusiast Justin Timberlake posted a selfie of himself voting in his hometown of Memphis. "Hey! You! Yeah, YOU! I just flew from LA to Memphis to #rockthevote!!! No excuses, my good people!" he wrote in the caption. "Get out and VOTE!"

This, it turned out, could have been a crime, thanks to a state law banning photos or videos inside polling stations except in certain limited circumstances. The Shelby County District Attorney's Office released a statement on Tuesday saying that the photo was being reviewed and might have broken that law, before the DA released a second statement clarifying that officials won't be using their "limited resources" to look into the matter.

But does that mean that laws against voting selfies—which are common to many states—are unenforceable, or is JT just getting off the hook because he's a celebrity who tried to to do good? Could I, a regular person, be prosecuted if I did the same?

To get some clarity, I called up Rick Hasen, a law professor at the University of California, Irvine, who is an expert on elections. While I had him on the line, I also asked him a bunch of hypothetical questions I'd been wondering about—like what would happen if you died or vomited or made a mistake in the voting booth.

VICE: Is it illegal to take a selfie in the voting booth?
Rick Hasen: Well, it's not illegal everywhere. It depends what you're talking about. In some states, it's legal. In some states, it's illegal. And in some states, it's unclear. And in the states where it's illegal, there have been some court challenges, so we're waiting to see what the Supreme Court ends up saying if it ultimately ends up there.

Why would you ever make these kinds of laws?
Here's the issue: In the old days, before the secret ballot, which came around 1900 or 1910 in a lot of states, there was a fair amount of vote-buying. You could verify how people voted if you didn't have a secret ballot. You still see that occasionally with absentee ballots. And so the danger of selfies is that you can verify how you voted, and people could pay you. Also, people could be coerced. You can imagine a spouse who wants to know how their spouse voted. So that's the argument against them.

And on the other side is probably a First Amendment argument, right?
Right––freedom of expression. [The selfie] is a way of affirming that you're engaging in a civil act. So it's kind of a tough balancing act that the courts have to engage in to figure out whether or not a law trying to preserve election integrity is justified given the First Amendment concerns.

Can you talk about some of the cases that might make it there? Do they literally have to do with selfies?
Well, with the example of one in New Hampshire, the American Civil Liberties Union filed a lawsuit to try and get the law struck down. [Note: In September, a federal court of appeals recently ruled in favor of the ACLU]. And I know that Snapchat has been involved in the lawsuit to try and support the ACLU's argument, because they think it's a good thing that people can take these kinds of pictures. I think the chances of being prosecuted for something like this is very small, but I still think the laws are serving a valid purpose and it's not to deter people from celebrating their civil duty but instead is trying to make sure we maintain integrity in our election process.

While I have you on the phone: What happens if you screw up and accidentally vote for the wrong person? Can you tell a poll worker after the fact and fix it?
Well, remember, we don't run one election. We don't even run 51 elections. We run something like 8,000 or 9,000 elections, so the rules are somewhat different in every place. In California, where I am, if you mess up your ballot, you can turn it in, and they can destroy it and give you a new one. And that's typically how things work if you haven't put your ballot into the ballot box or pushed that final button on the electronic machine to put your vote in. But at some point, it becomes too late.

What if you spilled coffee or something all over your ballot? You could get another one as long as you haven't reached the point of no return?
That's right. In fact, in some countries, like in Australia where there's mandatory voting, some people pour coffee or do things to their ballot as a protest because they don't want to vote.

Another question: If you leave part of the ballot blank, does that invalidate the whole thing, or do you not need to fill it all out?
You don't need to fill out the whole thing. And I would say that in places where there are lots [of elections] on the ballot, it's a very common thing to do. I think that the statistic that I heard from San Francisco is that between federal, state, and local races, that we'd be voting on up to 150 things. A lot of people, when in doubt, don't vote because they don't feel competent on a particular question.

So what would happen––hypothetically––if you went into cardiac arrest in the middle of voting. Would they count your ballot?
Well, that seems pretty unrealistic and like the last thing that we'd worry about, but I can talk about a more common thing, which is someone casting an absentee ballot two weeks before the election, and then they die. States differ on this question as to whether or not that ballot would count. As with all of these things, there's enough variation that you can't really answer the question for every place.

I'm always paranoid that I'll show up to my polling place and my name won't be the list. If that were to happen, could I just get a provisional ballot?
You can always be offered a provisional ballot. By law, you have to be offered one. But the state doesn't have to count it. So if you go to the wrong polling place and ask to vote a provisional ballot, in many places, you'll be allowed to write it, but it won't count. But if it turns out that you were mistakenly removed from the list, then you might have to talk to election officials to make sure your vote is going to count. But if you're supposed to be at the polling place on Elm Street and you end up going to the polling place on Main Street, and you think, Ah, I'll just do the provisional ballot, you're probably gonna be throwing your vote away.

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