- Wake County's district attorney pledged this week not to prosecute a Libertarian voter for taking a "ballot selfie" while voting in this fall's election.
- DA Lorrin Freeman offered that promise as she and local and state election officials filed paperwork objecting to an injunction against the state's ban on ballot selfies.
- A hearing is scheduled Oct. 7 in New Bern in Susan Hogarth's federal lawsuit challenging the selfie ban. Hogarth is the Libertarian candidate in a Wake County state Senate race.
Wake County’s district attorney would not charge a Libertarian voter with a crime for taking a “ballot selfie” at the polls this fall, according to a federal court filing this week.
DA Lorrin Freeman offered that pledge as she and state and local election officials filed paperwork objecting to Susan Hogarth’s request for an injunction blocking the state’s ban on ballot selfies. A hearing on Hogarth’s request is scheduled Oct. 7 in New Bern before US District Judge Louise Wood Flanagan.
“I have not threatened Hogarth with criminal prosecution for taking a ‘ballot selfie,’ nor have any members of my staff,” Freeman declared in a document filed Tuesday.
Freeman noted her “discretion when to prosecute” criminal cases. “I will not prosecute Hogarth under N.C. Gen. Stat. 163-166.3(c) for photographing, videotaping, or otherwise recording an image of her 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.”
The Wake DA also declared she would not prosecute Hogarth for “allowing her own ballot to be seen by any person,” “disclosing her own ballot,” or “taking past or future photographs of her own completed ballot.”
In a separate filing, Freeman objected to Hogarth’s request for an injunction. “Hogarth provides no evidence DA Freeman has ever prosecuted a ‘ballot selfie’ case, and cannot refute DA Freeman’s declaration that she does not intend to prosecute conduct such as that pled by Hogarth while the Court considers the constitutionality of the challenged statutes,” wrote state Special Deputy Attorney General Elizabeth Curran O’Brien, who represents Freeman.
The State Board of Elections also lodged objections Tuesday to Hogarth’s proposed injunction.
“After deliberately violating North Carolina election laws during the primary election cycle earlier this year, Plaintiff now challenges five longstanding provisions of North Carolina law designed to protect the privacy of the voter and to prevent voter intimidation and vote buying,” state lawyers wrote. “In Plaintiff’s view, those laws infringe on her free-speech rights by prohibiting her from disseminating a photograph of her voted ballot.”
“Plaintiff is both wrong on the merits and too late in seeking her injunction before the November 2024 general election,” the elections board’s court filing continued. “The laws that Plaintiff challenges have been part of the North Carolina General Statutes for decades, with the oldest having been enacted in 1929. She violated those laws months ago, during the March 2024 primary, and in that same month, she was warned of the potential consequences.”
“Yet she chose to wait until the eve of the 2024 general election to file suit, asking for preliminary injunctive relief that will not come until North Carolinians are already voting. For this reason alone, the Court should deny this motion,” the state elections board’s lawyers wrote.
The Wake County elections board filed a separate document objecting to an injunction.
The Foundation for Individual Rights and Expression is helping Hogarth challenge the state’s ballot selfie ban.
“After taking a picture of herself with her completed March 2024 primary ballot and sharing it on social media, Hogarth received a letter from the North Carolina State Board of Elections demanding she take down her ballot selfie and threatening her with criminal prosecution,” Hogarth’s lawyers wrote when requesting an expedited hearing in the case. “This November, Hogarth plans to exercise her First Amendment right to take and share a photo of herself in the voting booth with her completed ballot and has a particular interest in doing so because she herself will appear as a candidate.”
Hogarth is the Libertarian candidate in state Senate District 13. She faces Democratic Sen. Lisa Grafstein and Republican candidate Scott Lassiter.
“Hogarth and other voters must know in advance of the election whether they will face the threat of prosecution for taking a ballot selfie,” he lawyers wrote. “This is particularly true for those voting via absentee ballot, as they must mail their ballots in time to be received on Election Day.”
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.
Despite the threat of possible jail time and fines, Hogarth refused to comply with the State Board of Elections’ order, arguing that people “should be able to show the world how you voted without fear of punishment” in a free society, FIRE reported.
“Instead, with the help of the Foundation for Individual Rights and Expression (FIRE), today she’s suing members of the state board and Wake County Board of Elections to have the unconstitutional statutes struck down as they apply to ballot selfies,” FIRE said in a news release.
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 burden is on North Carolina to prove it has a good reason to ban ballot selfies and that this is the only way to do it,” said FIRE attorney Daniel Ortner. “The First Amendment protects the millions of voters who are proud to show the world that they actually voted for the people and policies they care about.”
The lawsuit asks the court to declare ballot selfies are protected expression under the First Amendment of the US Constitution.
The suit states that Hogarth has not removed her March 5 post and has no plans to do so. In fact, she plans to share another photo when she votes this fall.
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.