A North Carolina voter who posted a selfie with her primary ballot in March is suing the State Board of Elections after she received a letter directing her to take down the photo for breaking state law.
Ballot selfies are illegal in 14 states, including North Carolina. The state ban includes taking a photo with a ballot at an election site and an absentee ballot at home. Breaking the state law can lead to a misdemeanor charge under North Carolina General Statute 163-166.3(c).
Susan Hogarth voted in the Libertarian Party primary and shared an image on X with a defiant caption against the law.
(1) Laws against #ballotselfie are bullshit. (2) I guess this is my endorsement for @ChaseForLiberty and @FireTheUniparty pic.twitter.com/vCGxcQsHsa
— susanhogarth (@susanhogarth) March 5, 2024
After posting the photo, she received a letter from NCSBE directing her to take down the post, which is considered a crime. Despite the threat of possible jail time and fines, Susan is refusing to comply with the order, arguing that people “should be able to show the world how you voted without fear of punishment” in a free society.
“Instead, with the help of the Foundation for Individual Rights and Expression (FIRE), today she’s suing members of the state board and Wake County Board of Elections to have the unconstitutional statutes struck down as they apply to ballot selfies,” FIRE said.
According to a press release, one in 10 American adults— roughly 26 million people—have taken a ballot selfie at some point in their lives. A map shows 14 states with varying political leanings ban ballot selfies.
“The burden is on North Carolina to prove it has a good reason to ban ballot selfies and that this is the only way to do it,” said FIRE attorney Daniel Ortner. “The First Amendment protects the millions of voters who are proud to show the world that they actually voted for the people and policies they care about.”
The lawsuit brought against board members asks the court to declare ballot selfies are protected expression under the First Amendment of the U.S. Constitution. FIRE is asking the U.S. District Court for the Eastern District of North Carolina to halt enforcement of the ban before Election Day to ensure voters have the right to take a ballot selfie.
The suit states that Hogarth has not removed her March 5 post and has no plans to do so. In fact, she plans to share another photo when she votes this fall.
According to the NCSBE website, voters are allowed to have phones or electronic devices with them while voting as long as those devices are not used to photograph or video a ballot.
“Photographing a marked ballot is illegal in part because such photographs could be used as proof of a vote for a candidate in a vote-buying scheme,” the website states.
Meanwhile, Jon Guze, a Senior Fellow in Legal Studies at the John Locke Foundation, says he has mixed feelings on the matter.
“On the one hand, I think ballot secrecy is a very good thing. One of my primary objections to mail-in voting is that it means there’s nothing to stop someone standing over a voter and pressuring him or her to vote in a certain way,” explained Guze. “On the other hand, since we’ve got mail-in voting, we’ve already given up ballot secrecy, so why bother to ban ballot selfies. There’s nothing to stop voters from showing someone their ballots before they cast them. Why not afterwards?”
The State Board of Elections said it could not comment on pending litigation but noted it is required to “investigate when necessary or advisable, the administration of elections laws, frauds and irregularities in elections.”