- A Libertarian voter's lawsuit against North Carolina's ban on ballot selfies is likely to extend at least until mid-December, based on two new court orders issued Tuesday.
- US District Judge Louise Wood Flanagan issued an order extending until Friday the deadline for voter Susan Hogarth and Wake County District Attorney Lorrin Freeman to finalize a consent decree in the case. Freeman had pledged not to prosecute Hogarth for violating the state's ballot photo ban.
- Flanagan issued another order setting deadlines for resolving the lawsuit. The last scheduled deadline is Dec. 13.
A Libertarian voter’s legal fight against North Carolina’s ban on ballot selfies is likely to extend at least through mid-December. In the meantime, Susan Hogarth is unlikely to face a legal penalty if she posts a photo of herself with her ballot during this fall’s election.
US District Judge Louise Wood Flanagan issued a pair of orders Tuesday in Hogarth’s lawsuit against the State Board of Elections, Wake County District Attorney Lorrin Freeman, and the Wake elections board.
One order extends until Friday the deadline for Hogarth and Freeman to file a proposed consent decree. Freeman had declared in earlier court filings that she would not prosecute Hogarth for violating state laws against photographing and sharing details of a completed election ballot this fall.
The second order sets deadlines for resolving Hogarth’s legal complaint. Defendants in the case face a Friday deadline to file motions to dismiss the case for lack of subject-matter jurisdiction. Hogarth faces a Nov. 22 deadline to respond to those motions. That deadline falls 17 days after Election Day. Defendants can reply to Hogarth’s arguments by Dec. 13.
Flanagan did not indicate when she would rule on the motions. If the case still stands when she issues her ruling, the defendants would have another two weeks to seek to dismiss the case on other grounds.
Hogarth and the defendants appeared before Flanagan on Oct. 7 in New Bern. Court records indicated that Freeman had agreed to a “limited injunction” in the case. Lawyers were originally scheduled to finalize details of their agreement on Oct. 11.
Freeman indicated in a Sept. 17 court filing that she would not prosecute Hogarth for taking a photo with her completed ballot during the upcoming election.
“Ballot selfies combine two cherished American freedoms — voting and political expression,” according to a brief Hogarth’s lawyers filed on Sept. 24. Hogarth is working with lawyers from the Foundation for Individual Rights and Expression. “As the First Circuit and several district courts have held, ballot selfies are core political speech that the State cannot ban without supplying concrete evidence of their harm to compelling state interests.”
“But North Carolina comes to the court empty-handed,” the court filing continued. “Defendants’ ban is a content-based regulation of speech, so they must provide evidence showing it is narrowly tailored to achieve a compelling government interest. They establish neither. North Carolina’s Ballot Selfie Ban — like bans in New Hampshire, Georgia, Indiana, and Colorado — thus violates the First Amendment and should meet the same fate: an injunction.”
Hogarth is the Libertarian candidate in state Senate District 13. She faces Democratic Sen. Lisa Grafstein and Republican candidate Scott Lassiter. Hogarth is suing state and local elections officials, along with Freeman.
Defendants filed paperwork urging Flanagan not to issue an injunction.
Freeman filed a declaration in federal court explaining that she would not charge Hogarth with a crime for taking a “ballot selfie” at the polls this fall.
“I have not threatened Hogarth with criminal prosecution for taking a ‘ballot selfie,’ nor have any members of my staff,” Freeman explained in a court document.
Freeman noted her “discretion when to prosecute” criminal cases. “I will not prosecute Hogarth under N.C. Gen. Stat. 163-166.3(c) for photographing, videotaping, or otherwise recording an image of her own voted official ballot in the voting enclosure, provided said photograph, video, or recording does not include the image of any other person or another person’s voted ballot.”
The Wake DA also declared she would not prosecute Hogarth for “allowing her own ballot to be seen by any person,” “disclosing her own ballot,” or “taking past or future photographs of her own completed ballot.”
In a separate filing, Freeman objected to Hogarth’s request for an injunction. “Hogarth provides no evidence DA Freeman has ever prosecuted a ‘ballot selfie’ case, and cannot refute DA Freeman’s declaration that she does not intend to prosecute conduct such as that pled by Hogarth while the Court considers the constitutionality of the challenged statutes,” wrote state Special Deputy Attorney General Elizabeth Curran O’Brien, who represents Freeman.
The State Board of Elections also lodged objections to Hogarth’s proposed injunction.
“After deliberately violating North Carolina election laws during the primary election cycle earlier this year, Plaintiff now challenges five longstanding provisions of North Carolina law designed to protect the privacy of the voter and to prevent voter intimidation and vote buying,” state lawyers wrote. “In Plaintiff’s view, those laws infringe on her free-speech rights by prohibiting her from disseminating a photograph of her voted ballot.”
“Plaintiff is both wrong on the merits and too late in seeking her injunction before the November 2024 general election,” the elections board’s court filing continued. “The laws that Plaintiff challenges have been part of the North Carolina General Statutes for decades, with the oldest having been enacted in 1929. She violated those laws months ago, during the March 2024 primary, and in that same month, she was warned of the potential consequences.”
“Yet she chose to wait until the eve of the 2024 general election to file suit, asking for preliminary injunctive relief that will not come until North Carolinians are already voting. For this reason alone, the Court should deny this motion,” the state elections board’s lawyers wrote.
The Wake County elections board filed a separate document objecting to an injunction.
Ballot selfies are illegal in 14 states, including North Carolina, according to FIRE. 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).
Hogarth voted in the Libertarian Party primary in March and shared an image on X/Twitter with a caption criticizing the law.
One in 10 American adults — roughly 26 million people — have taken a ballot selfie at some point in their lives, according to the FIRE release,
“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 asks the court to declare ballot selfies are protected expression under the First Amendment of the US Constitution.
The suit states that Hogarth has not removed her March 5 post and has no plans to do so. 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.