Wake County resident Susan Hogarth walked into the voting booth during the March 5 primary, marked her ballot, fed it to the tabulator, and went on her way.

So far, so good.

But another thing she did while voting got her into trouble. She took a picture of her marked ballot and posted it on X. Posting such “ballot selfies” has become somewhat common with the rise of social media.

It is also against North Carolina law.

North Carolina law (163-166.3(c)) states, “No person shall photograph, videotape, or otherwise record the image of a voted official ballot for any purpose not otherwise permitted under law.”

As the State Board of Elections (SBE) informed Hogarth in a letter sent to her a week after the primary, taking ballot selfies is a Class 1 misdemeanor punishable by fines, community service, or up to 45 days in jail for first-time offenders.

The letter ended with a request for Hogarth to take the ballot selfie down.

Instead, Hogarth has sued the SBE, claiming that the ban deprives “Hogarth and other voters of their constitutional right to express their core political beliefs through taking and sharing ballot selfies.” She is backed in her lawsuit by FIRE (Foundation for Individual Rights and Expression), a group that has traditionally fought for the right to free expression on college campuses but has expanded to defending speech off campus.

As courts have interpreted the First Amendment, governments cannot restrict speech absent a “compelling interest.”

What is the government’s compelling interest here? It is to hinder vote-buying operations and voter intimidation. The ban on ballot selfies and a similar ban on unauthorized photography in voting places narrowly serve those interests. The state can use no other preventative measure to achieve those interests.

Vote-buying has a “long, if ignoble, history in the United States” and internationally. The International Institute for Democracy and Electoral Assistance wrote that “brokers” may “require voters to photograph their completed ballot paper with their mobile phone” to confirm that they voted as promised. Despite the difficulty in detecting and prosecuting vote-buying (and other election crimes), prosecutors still occasionally secure convictions for the practice.

(I had a personal encounter with vote buying while working for a 1996 congressional campaign in Louisiana, when two gentlemen offered to sell me their votes for $10 each. I did not take them up on their offer.)

The selfie ban is not North Carolina’s only election law restricting speech. State law also says people may not “distribute campaign literature, place political advertising, solicit votes, or otherwise engage in election-related activity” near voting locations.

The US Supreme Court upheld a similar ban on political speech near polling places in Burson v. Freeman (1992), saying that such laws “serve the States’ compelling interests in preventing voter intimidation and election fraud.”

The high court also noted why post hoc enforcement of election protections is often ineffective and why preventative laws are needed:

[I]t is difficult to isolate the exact effect of these laws on voter intimidation and election fraud. Voter intimidation and election fraud are successful precisely because they are difficult to detect.

Furthermore, because a government has such a compelling interest in securing the right to vote freely and effectively, this Court never has held a State “to the burden of demonstrating empirically the objective effects on political stability that [are] produced” by the voting regulation in question.

Nor is this the first ballot-selfie lawsuit in federal court, and past lawsuits have had different outcomes. In 2016, a federal court overturned New Hampshire’s ballot selfie ban. The court said the law was too broad and covered “an unsubstantiated and hypothetical danger,” likening it to “burning down the house to roast the pig.”

Another federal court went the other way the following year, upholding New York’s ban on ballot selfies as narrowly tailored to address a compelling state interest in preventing vote buying and voter intimidation. Judge Kevin Castel noted that “vote buying and voter intimidation virtually disappeared” in New York with the adoption of the secret ballot, although vote-buying schemes are still uncovered periodically. Ballot selfies undermine the very protection the secret ballot was meant to achieve.

Castel noted that “a ballot selfie is a potent form of speech,” but “other forms of visual display of candidate support may be as compelling or nearly as compelling without the attendant dangers.”

Given those contradictory rulings in federal courts, Ms. Hogarth’s lawsuit could reach the Supreme Court. The case’s compelling and competing interests could split the court and even result in a 5-4 decision.

Hopefully, the decision will uphold the security of North Carolina’s elections and the safety of voters by keeping the ballot-selfie ban in place.