- A Libertarian voter challenging North Carolina's ban on ballot selfies added new information Wednesday to her federal lawsuit.
- Susan Hogarth reported that a Wake County elections official approached her and asked her to delete photos taken when she filled out a ballot on Oct. 26 during early voting.
- The encounter made Hogarth "uncomfortable and anxious," according to a court filing. An Oct. 21 court order protected Hogarth from prosecution related to her ballot selfie.
A Libertarian voter challenging North Carolina’s ban on ballot selfies has added new details to her federal lawsuit. A court filing Wednesday detailed a local elections official’s attempt to block her from taking a photo of her ballot during early voting.
Susan Hogarth filed suit in 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.
A federal judge issued an order on Oct. 21 protecting Hogarth from prosecution for taking another ballot selfie during the general election.
Yet Wednesday’s court filing explained that Hogarth 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.
US District Judge Louise Wood Flanagan issued the October order directing Wake County District Attorney Lorrin 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.
The legal fight against North Carolina’s ban on ballot selfies is likely to extend at least through mid-December.
An Oct. 15 order set deadlines for resolving Hogarth’s legal complaint. Hogarth faces a Nov. 22 deadline to respond to motions to dismiss her case. 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.
“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.