North Carolina’s ban on “ballot selfies” remains in effect for now. But a federal Appeals Court could determine whether voters will be allowed to share photos of completed ballots when they head to the polls this fall.
Wake County Libertarian Susan Hogarth and the Foundation for Individual Rights and Expression are challenging five state laws that make up the ballot selfie ban.
“No matter where you vote or for whom you vote, participating in our democracy is something in which voters should take pride. Plaintiff-Appellant Susan Hogarth does,” her lawyers wrote in a May 1 brief filed at the 4th US Circuit Court of Appeals. “So she takes pictures of her voted ballots and posts them on social media — partly to promote her candidates; partly to model and advocate voting, and doing so for third-party candidates; and partly to object to North Carolina laws that prohibit her taking and posting the pictures at all. For that, the state sent Hogarth a letter threatening prosecution.”
“That’s because North Carolina criminalizes celebrating voting with ‘ballot selfies’ that uniquely express for whom and/or what you actually voted, even though they are core political speech entitled to the First Amendment’s ‘fullest and most urgent application,’” Hogarth and FIRE argued. The government’s response is “to ‘simply posit the existence’ of a few ‘abstract’ government interests, which cannot carry their constitutional burden for restricting speech.”
The 1st Circuit invalidated similar restrictions in New Hampshire. Appellate judges there ruled “a ballot selfie ban that ‘reaches and prohibits innocent political speech by voters’ but is ‘unconnected to’ the government’s proffered interests cannot withstand First Amendment scrutiny,” Hogarth’s lawyers explained. “Like New Hampshire’s ill-fated law, the statutory provisions comprising North Carolina’s ballot selfie ban ‘suppress a large swath of political speech’ without constitutionally sufficient justification.”
Four state laws “ban and criminalize” taking photos of completed ballots and sharing them. A fifth “grants elections officials unbridled discretion to stop voters from photographing themselves in polling places.” Hogarth challenges all five laws.
“That kind of ‘arbitrary discretion’ is an unreasonable and thus unconstitutional burden on speech in a nonpublic forum,” Hogarth’s lawyers argued. The five provisions “censor speech at ‘the heart of the First Amendment’s protection,’ and Defendants failed to constitutionally justify below, under any applicable standard, restricting North Carolinians’ First Amendment rights in this manner.”
US District Judge Louise Flanagan disagreed. After issuing an order protecting Hogarth from prosecution during the 2024 general election, Flanagan produced a ruling in March upholding the state’s restrictions.
Banning photos of completed ballots “to prevent vote-buying and coercion is connected to maintaining the ‘right to vote freely … [and] protecting voters from confusion and undue influence,’” Flanagan wrote. “This prohibition prevents the use of the voted ballot or a person in a voting booth as proof of compliance in a vote-buying scheme, and protects voters from compulsion to disclose photographs of their ballot or themselves to ensure submission to a would-be vote intimidator’s demands.”
“The intended purpose of a voting booth is to serve as ‘an island of calm in which voters can peacefully contemplate their choices,’ not a place in which a person votes in a manner procured by purchase, impelled by threats, or otherwise influenced by others engaging in such conduct,” Flanagan added. “Defendants’ interests in preventing bribed and forced votes are connected to maintaining the integrity of the voting booth.”
“Common sense and logic support the proposition that photographs of voted ballots or voters, taken within voting booths, create opportunities for abuse through vote-buying and coercion, because the briber or intimidator could demand a photograph to ensure compliance with the bribe or threat, or the practice could instill fear in others that such a demand could be made,” Flanagan explained.
The judge noted the state’s “interest in preserving the integrity and order of polling places.” Ballot selfie laws “are reasonable means to achieve that end,” she wrote.
It’s unclear whether the 4th Circuit will place more emphasis on government’s interest in preventing vote-buying and coercion or voters’ First Amendment rights to publicize their electoral choices.
Hogarth and FIRE can point to at least one positive sign. The Appeals Court accepted their request to speed up the normal timeline for written briefing. Final documents are due June 22. The court could reach a decision before voters head to polling places across North Carolina for the general election.
In an age of ubiquitous selfies, it will be good to know whether ballot photos will prove acceptable or remain legally off limits.
Mitch Kokai is senior political analyst for the John Locke Foundation.