Libertarian posts another ballot selfie as she challenges NC ban

Image from Susan Hogarth's X/Twitter account

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  • Libertarian voter Susan Hogarth posted a ballot selfie on social media this week, after securing a court order guaranteeing that she will not face prosecution from the Wake County district attorney for violating state law.
  • Hogarth is pursuing a federal lawsuit challenging North Carolina's ban on ballot selfies.
  • Filing deadlines in the lawsuit suggest the case will last at least through mid-December.

A Libertarian voter challenging North Carolina’s ban on ballot selfies posted a photo of her posing with her general election ballot this week. She will not face prosecution for the action, thanks to a court order issued on Oct. 21.

“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,” Susan Hogarth posted Monday on X/Twitter.

Chase Oliver and Susan Hogarth with ballot selfie and sign
Image from Susan Hogarth’s X/Twitter account

“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.

Susan Hogarth with ballot and sign warning against ballot selfies
Image from Susan Hogarth’s X/Twitter account

US District Judge Louise Wood Flanagan issued an order last week 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.

An Oct. 7 hearing before 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.

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. 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.

“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.

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.

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