- A federal judge is allowing Wake County Libertarian voter Susan Hogarth to proceed with her lawsuit challenging North Carolina's ban on "ballot selfies."
- US District Judge Louise Wood Flanagan issues an order denying motions from the state and Wake County elections boards and Wake District Attorney Lorrin Freeman to have the case dismissed.
- Flanagan agreed to drop state Attorney General Jeff Jackson as a defendant in the case.
A federal judge will allow a Wake County Libertarian voter to move forward with her lawsuit challenging North Carolina’s ban on “ballot selfies.” A court order Friday denied motions from most defendants to have the case dismissed.
Only state Attorney General Jeff Jackson successfully moved to have the complaint dropped against him.
Voter Susan Hogarth, a former Libertarian state Senate candidate, can continue to pursue her case against the state and Wake County elections boards and Wake County District Attorney Lorrin Freeman.
US District Judge Louise Wood Flanagan’s order 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.
Hogarth filed suit last August to challenge state laws blocking voters from taking photos of a completed ballot. The suit was based on Hogarth’s social media post of a ballot selfie during the March primary.
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.
Flanagan issued the October order directing Freeman not to prosecute Hogarth. The order arrived three days after Hogarth and Freeman informed the judge that they could not reach a deal in the case.
Flanagan’s order addressed part of voter Hogarth’s request.
“[T]he court resolves plaintiff’s motion for injunctive relief in reliance upon defendant Freeman’s declared exercises of prosecutorial discretion,” Flanagan wrote. “Pending the court’s determination on the challenged statutory provisions, defendant Freeman shall not engage in: 1. Any prosecution of plaintiff under N.C. Gen. Stat. § 163-166.3(c) for photographing, videotaping, or otherwise recording an image of plaintiff’s 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; 2. Any prosecution of plaintiff under N.C. Gen. Stat. § 163-273(a)(1) for allowing her own ballot to be seen by any person; 3. Any prosecution of plaintiff under N.C. Gen. Stat. § 163-165.1(e) for disclosing her own voted ballot; and 4. Any prosecution of plaintiff under N.C. Gen. Stat. § 163-274(b)(1) for taking past or future photographs of plaintiff’s own completed ballot.”
A status report filed Oct. 18 in Flanagan’s court indicated that Hogarth and 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 on the same day to dismiss Hogarth’s suit.
“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. She secured 2.9% of the vote in a race won by incumbent Democratic Sen. Lisa Grafstein.
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).
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.