- The Libertarian voter challenging North Carolina's ban on ballot selfies has yet to finalize a deal with Wake County District Attorney Lorrin Freeman to avoid potential prosecution.
- Voter Susan Hogarth, Freeman, and the State Board of Elections indicated in a court filing Friday that they have not been able to work out an agreement after an Oct. 7 hearing before US District Judge Louise Wood Flanagan.
- Defendants in Hogarth's federal lawsuit filed motions Friday in Flanagan's court to dismiss the complaints against them.
The Libertarian voter challenging North Carolina’s ban on ballot selfies has not finalized an agreement with the Wake County district attorney to avoid prosecution for any selfie taking during the upcoming election.
A status report filed Friday in federal court indicated that voter Susan Hogarth and Wake DA Lorrin Freeman had not been able to reach agreement on details of a consent decree in the case. The order also indicated that the State Board of Elections would not take part in any deal between Hogarth and Freeman.
Defendants in the case filed motions Friday to dismiss Hogarth’s suit.
An Oct. 7 hearing before US District Judge Louise Wood Flanagan had prompted the discussion of a consent decree between Hogarth and Freeman.
“After several rounds of negotiation, the parties have made substantial headway on their agreements. However, each party seeks language to which the other objects,” according to the court filing.
Hogarth “requests language making clear that the consent order gives her the right to take a ballot selfie in her designated polling place.”
Freeman requests language “Stating that prior to this case she did not know Hogarth or threaten Hogarth with prosecution over the facts alleged in Hogarth’s pleadings,” “That she enters into the consent decree pursuant to her lawful authority and discretion to prosecute individuals as conferred by law and citing legal authority,” “Expressing her concern that individuals, including Hogarth, may use photography at the polling place to intimidate others,” and “Requiring Hogarth to follow all other applicable voting rules and regulations.”
Hogarth says without her requested language, the decree “will not ensure that poll workers respect Hogarth’s freedom to take a ballot selfie in the first place, as this Court advised. … For example, Hogarth would still be subject to arrest by the chief judge of her voting precinct for violating the statutes.”
“And poll workers, informed only of the order’s protection of Hogarth against prosecution, may seek to carry out their charges by preventing her from taking ballot selfies,” the court filing added.
“Hogarth refuses to sign a consent agreement that does not include additional terms and conditions that go beyond District Attorney Freeman’s role in the case, beyond her lawful authority, and pertain to others not a party to this consent agreement,” Freeman responded. “Additionally, Hogarth requests District Attorney Freeman remove information regarding the basis upon which District Attorney Freeman agreed to enter into the consent order. District Attorney Freeman has repeatedly informed Hogarth that proposed terms unrelated to criminal prosecution by District Attorney Freeman have no place in a consent order between the two parties.”
The State Board of Elections also objected to Hogarth’s request for language in the consent decree that would affect elections officials’ actions. “After accepting that the State Board of Elections would not [be] a party, Plaintiff then inserted terms into the agreement they proposed that would nonetheless bind the State Board of Elections, the Wake County Board of Elections, and poll workers at any site where the Plaintiff may choose to vote,” according to the court filing. “State Defendants notified the parties that they objected to the inclusion of this language trying to bind parties who never agreed to be included in this order.”
The legal fight against North Carolina’s ban on ballot selfies is likely to extend at least through mid-December.
Flanagan issued a pair of Oct. 15 orders in the case. One order extended the deadline for Hogarth and Freeman to file a proposed consent decree. The second order set deadlines for resolving Hogarth’s legal complaint. Hogarth faces a Nov. 22 deadline to respond to motions to dismiss her case. 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.
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 lawsuit asks the court to declare ballot selfies are protected expression under the First Amendment of the US Constitution.
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.