Ballot selfie? PA Law and the First Amendment Collide

If you are planning on snapping a “selfie” in the voting booth this Tuesday, you may find yourself on the wrong side of the law.

25 Pa.C.S. § 3530 prohibits a voter from showing “his ballot or the face of the voting machine voted by him to be seen by any person with the apparent intention of letting it be known how he is about to vote.” A person who violates this section “shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine not exceeding one thousand ($1,000) dollars, or to undergo an imprisonment of not more than one (1) year, or both, in the discretion of the court.”

While the law does not make it a crime to show a ballot after it has been cast, any revelation prior to the vote being cast appears to be punishable. This would seemingly include any live streaming activities as well. It also appears to conflict with one’s First Amendment right to free speech.

In fact, a Federal Court held in September that a New Hampshire ban on “ballot selfies” was unconstitutional. The law challenged made it unlawful for voters to snap a picture of their ballot and post it on social media.

The Pennsylvania Department of State (DoS) issued a guidance on rules in effect at the polling place on election day in October of this year. Under the section entitled “Electronic Devices” the DoS states that the Election Code does not address the use of electronic devices in the polling place and as such, counties should “adopt common sense rules that take into account the need for order in the polling place and the right of citizens to vote unimpeded.”

In particular, the guidance notes that “[r]ecent court cases have found a First Amendment right to take “ballot selfies”. Therefore, the DoS recommends that “voters who want to take a picture of themselves voting take care that they not disclose the selections of voters other than themselves. The Department recommends that voters wait until after they leave the polling place to post ballot selfies on social media.”

While the law has not changed here in Pennsylvania, it would seem that the trend on a national level would indicate that if an individual were to challenge the law in relation to “ballot selfies” they would be successful on First Amendment grounds.

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