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Two federal judges in two separate cases on opposite sides of the country have denied efforts to legalize ballot selfies, just days before the presidential election.
On Thursday, a federal judge in New York rejected plaintiffs’ attempts to halt an existing state and New York City law that bans the practice. The judge wrestled with balancing First Amendment rights and the public policy interest in keeping a secret ballot so that voting is not unduly influenced.
“The absence of recent evidence of this kind of voter bribery or intimidation does not mean that the motivation to engage in such conduct no longer exists,” US District Judge P. Kevin Castel wrote. “Rather, it is consistent with the continued effectiveness of the New York statute.”
The judge also found it a bit strange that the lawsuit was brought just 13 days before the November 8 election, “even though the statute has been on the books longer than anyone has been alive,” and that smartphone cameras “have been prevalent since 2007.”
“A last-minute, judicially-imposed change in the protocol at 5,300 polling places would be a recipe for delays and a disorderly election, as well-intentioned voters either took the perfectly posed selfie or struggled with their rarely-used smartphone camera,” he continued. “This would not be in the public interest, a hurdle that all preliminary injunctions must cross.”
Similarly, on Wednesday, a federal judge in California denied the American Civil Liberties Union’s attempt to impose a temporary restraining order on an already-overturned state law that forbids ballot selfies. The Golden State’s new law legalizing the practice does not take effect until January 1, 2017, so ballot selfies will remain illegal through the presidential election.
Given that America conducts federal elections from the state and local level, the nation has no single election law.
Instead, the US has a patchwork of ballot-selfie legality. In late September 2016, the 1st US Circuit Court of Appeals overturned a similar New Hampshire state law that banned the practice, calling it “facially unconstitutional.” That appellate decision, as it is in a different federal circuit, does not affect the rulings from New York and California.
Still, it’s important to remember that if you really want to take a ballot selfie, it’s highly unlikely that you’ll be arrested or prosecuted—Justin Timberlake notwithstanding. (Case in point: according to the State of California, this reporter has already broken the law.)