Both sides want NC ballot selfie lawsuit decided without trial

A federal lawsuit challenging North Carolina’s ban on “ballot selfies” could be decided without a trial. Libertarian voter Susan Hogarth, state and local elections officials, and the Wake County district attorney filed motions Friday seeking to avoid a federal trial.

Hogarth filed suit in August 2024 after election officials urged her to take down a photo she posted to social media showing her holding her completed primary election ballot. A court order allowed Hogarth to post a photo of her general election ballot without threat of prosecution.

US District Judge Louise Wood Flanagan issued an order in March rejecting motions from election officials and Wake County District Attorney Lorrin Freeman to dismiss the lawsuit. Flanagan agreed to drop state Attorney General Jeff Jackson from the suit.

The latest court filings from Hogarth and the remaining defendants seek a judgment on the pleadings. That means Flanagan would decide the case based on the written court filings without holding a trial or seeking additional evidence.

“’One person, one vote’ is the foundation of our republic, yet in North Carolina it is a crime to celebrate democracy with a photograph of yourself and your vote — that is, to take and share a ‘ballot selfie,’” Hogarth’s lawyers wrote. “Ballot selfies help voters uniquely show support for political parties, candidates, and the act of voting by depicting for whom they actually voted. Ballot selfies are accordingly core political speech to which the First Amendment ‘has its fullest and most urgent application,’”

“There is no justification Defendants can offer to render that violation of voters’ First Amendment rights constitutional,” the court filing continued.

“Four North Carolina statutes ban taking photographs of a voted ballot and criminalize sharing them (the ‘Ballot Photography Provisions’), while a fifth grants elections officials unbridled discretion to stop voters from photographing themselves in the polling place (the ‘Voting Enclosure Provision’). These laws (collectively, the ‘Ballot Selfie Ban’) are content-based restrictions of protected speech that single out ballot selfies for disfavored treatment,” Hogarth’s lawyers explained.

“The undisputed facts provide no support for Defendants’ assertions that ballot selfies in North Carolina facilitate ‘vote buying,’ ‘social coercion,’ ‘delays,’ ‘distraction,’ or ‘voter intimidation,’ or that they violate other voters’ privacy,” the court filing added. “These justifications are, at best, ‘merely conjectural’ and cannot serve as lawful reasons to prohibit protected speech.”

“Defendants therefore cannot show the Ballot Selfie Ban furthers either a compelling interest under strict scrutiny or a ‘valid interest’ under the ‘reasonableness’ test. Nor can Defendants explain why the state could not achieve its ends through less restrictive means by enforcing existing statutes that directly address their asserted harms, a failure that dooms the Ban under any test,” Hogarth’s lawyers wrote.

“Plaintiff challenges five longstanding, reasonable, viewpoint-neutral laws that are necessary to serve North Carolina’s interests in curtailing vote buying and voter intimidation,” lawyers from the NC Department of Justice and Wake County Attorney’s Office responded.

“Plaintiff lacks legally sufficient claims because the State’s interests are significant and the laws’ regulations on speech are limited,” the government lawyers added. Even under stricter scrutiny. “the State’s interests are compelling.”

Flanagan’s order this spring cited the state elections board’s letter to Hogarth after the March 2024 primary. The letter warned Hogarth about a possible violation of a state law against taking a photo of a completed election ballot.

“Based on these facts and the duties and powers conferred by statute on the State Board, plaintiff has standing to assert her First Amendment claims against this group of defendants,” Flanagan wrote. “She has shown ‘she has suffered or likely will suffer an injury in fact’ based upon the letter, and the State Board defendants’ power to make prosecution referrals if she did not comply.”

“For the same reason, the ‘injury likely would be redressed by the requested judicial relief,’” Flanagan added. “Plaintiff’s injury is ‘concrete’ and ‘particularized’ because the letter was addressed directly to her. Plaintiff also has established ‘a sufficient likelihood of future injury’ because of the State Board’s authorities and duties.”

“Plaintiff has standing generally against the Wake County Board defendants for the same reasons as the State Board defendants, because they are responsible for carrying out many of the State Board’s powers during elections,” Flanagan wrote.

Flanagan also rejected the Wake DA’s arguments.

“Freeman first argues that no credible threat of prosecution exists because her office has never enforced this statute,” Flanagan wrote. “This argument fails for two reasons.”

“First, the State Board and Wake County Board repeatedly have exercised the extent of their powers to enforce the statutes, such as by warning voters, including plaintiff, about the statutes, threatening plaintiff with prosecution, and investigating and referring violations to district attorneys,” the judge explained. “That Freeman has not enforced these statutes to final conviction against anybody during her term of office does not overcome the presumption of credible prosecution.”

“Second, an enforcing authority’s interpretation that a statute does not apply to certain conduct, when the statute’s plain terms show the contrary, does not defeat the threat of prosecution,” Flanagan added.

Hogarth cannot proceed with her complaint against the attorney general.

“North Carolina law sharply circumscribes the attorney general’s powers to participate directly in criminal prosecutions,” Flanagan explained. “The attorney general may assist criminal prosecutions, but only at district attorney request and if the attorney general independently, as a matter of discretion, approves such participation.”

“This statute imposes no duty to participate in the prosecution process in any way, in contrast to the statutes governing the State Board, which impose mandatory duties upon that body,” the judge added. “For Jackson to have a relationship with the statute, Freeman would have to make the discretionary decision to pursue charges against plaintiff, and the discretionary decision to request attorney general involvement, and then Jackson would have to make the discretionary decision to approve such involvement. This chain of contingencies stretches the relationship between Jackson and the challenged statutes past the breaking point.”

A court filing last November detailed a Wake elections official’s attempt to block Hogarth from taking a photo of her ballot during early voting in the 2024 general election.

Flanagan issued an order on Oct. 21 protecting Hogarth from prosecution for taking another ballot selfie during the general election.

Yet Hogarth reported that she encountered problems when she cast a ballot on Oct. 26 during early voting in Wake County.

“Hogarth took approximately two minutes to complete her ballot,” her lawyers wrote. “After completing her ballot, while still in the voting booth, Hogarth used her cell phone camera to take ballot selfies, including pictures of: a. Both sides of her voted ballot; b. Herself with a ‘no photos’ sign posted to the voting booth; and c. Herself in the voting booth, holding up her voted ballot.”

“It took Hogarth less than one minute to take the photographs. While Hogarth took the photographs, a Wake County Board of Elections official stood approximately 10 feet away. While Hogarth was taking her final ballot selfie, the elections official approached Hogarth and commanded, ‘you cannot take a picture of your ballot, you need to delete that, please.’ Hogarth advised the elections official that a court had ordered she could take ballot selfies without fear of prosecution,” the court filing continued.

The elections official asked Hogarth to wait, then walked away. “The public, in-person confrontation by an elections official made Hogarth uncomfortable and anxious,” her lawyers wrote.

About 2 ½ minutes later, the official returned and said, “I checked with our chief judge, she called the Board of Elections, and you’re good.” Hogarth thanked the official, submitted her ballot, and left, according to the court filing.

“No one had to wait to enter a voting booth while Hogarth was present in the voting enclosure. No elections official at the polling place notified Hogarth that her time in the booth had expired. Hogarth did not disrupt the polling place and no elections official at the polling place told Hogarth otherwise. Hogarth did not intimidate any other voters and no elections official at the polling place told Hogarth otherwise. Hogarth did not invade any other voter’s privacy, and no elections official at the polling place told Hogarth otherwise,” the court filing continued.

Without the court order, Hogarth believed elections officials would not have allowed her to take the photos “or leave the polling place with her ballot selfies,” her lawyers wrote.

“Election officials accosting a voter in a voting booth and instructing them to cease taking and to delete ballot selfies would chill a person of ordinary firmness from engaging in the protected expression of taking and sharing ballot selfies,” the court filing continued.

“I voted Saturday, and was privileged to have  [Libertarian presidential candidate Chase Oliver] @ChaseForLiberty waiting for me outside the poll, so I got a sort of #ballotselfie inception thing going on here,” Hogarth posted Oct. 28 on X/Twitter.

“NC’s #ballotselfie ban is still bs! Hope this is the last year for the scary signage in the polling station!” Hogarth added at the end of the social media post.

“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.”

Hogarth was the Libertarian candidate in the state Senate District 13 election in 2024. She secured 2.9% of the vote in a race won by incumbent Democratic Sen. Lisa Grafstein.