- A federal judge has scheduled an Oct. 7 hearing to consider a Libertarian voter's request for an injunction blocking North Carolina's ban on ballot selfies.
- Susan Hogarth is also a Libertarian candidate for state Senate. She had asked US District Judge Louise Flanagan for a hearing by Oct. 15 and a decision by Oct. 29 to make ballot selfie rules clear on Election Day.
- The State Board of Elections had opposed Hogarth's request for an expedited hearing in the case.
A federal judge has scheduled an Oct. 7 hearing to consider a Libertarian voter’s request for an injunction against North Carolina’s ban on ballot selfies.
Susan Hogarth had requested a hearing by Oct. 15 in her lawsuit against the North Carolina State Board of Elections. State election officials had opposed an expedited hearing in the case.
US District Judge Louise Wood Flanagan set the hearing during a telephone conference Friday with lawyers on both sides of the dispute. Flanagan also set a Tuesday deadline for state government lawyers to respond to Hogarth’s request.
The Foundation for Individual Rights and Expression is helping Hogarth challenge the state’s ballot selfie ban.
“After taking a picture of herself with her completed March 2024 primary ballot and sharing it on social media, Hogarth received a letter from the North Carolina State Board of Elections demanding she take down her ballot selfie and threatening her with criminal prosecution,” Hogarth’s lawyers wrote when requesting an expedited hearing in the case. “This November, Hogarth plans to exercise her First Amendment right to take and share a photo of herself in the voting booth with her completed ballot and has a particular interest in doing so because she herself will appear as a candidate.”
Hogarth is the Libertarian candidate in state Senate District 13. She faces Democratic Sen. Lisa Grafstein and Republican candidate Scott Lassiter.
“Hogarth and other voters must know in advance of the election whether they will face the threat of prosecution for taking a ballot selfie,” he lawyers wrote. “This is particularly true for those voting via absentee ballot, as they must mail their ballots in time to be received on Election Day.”
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.
Despite the threat of possible jail time and fines, Hogarth refused to comply with the State Board of Elections’ 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 in a news release.
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. 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.
When Hogarth filed suit, 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.”