In the fight over the constitutionality of bans on ballot selfies, I’m having a definite sense of deja vu.
Back in 2008, I noted that Ben and Jerry’s, in an act of civic virtue, promised free Ice Cream on election day to everyone who showed an “I Voted” sticker. “Ben and Jerry’s is giving free ice cream for turnout. The problem is that paying for turnout—even in a civic minded gesture such as this one—is illegal in elections in which federal candidates are on the ballot. I’ve written extensively about the issue. The only out I see for the ice cream company is that one need not prove one voted; it is enough to say “I voted. But if I were Ben and Jerry’s lawyer, I’d tell them to shut this down.”
I was called a “crotchety spoilsport” for raising this argument, but my fear was that payment for turnout—especially directed to certain areas only—could be the basis for vote buying charges in federal elections that would be worrisome. The Ben and Jerry’s story ended happily, with the ice cream company responding: ““On the evening of November 4th, from 5 — 8 pm, Ben & Jerry’s ice cream Scoop Shops will be giving away free scoops across the nation. ‘Originally, we planned to give free scoops away just to those who voted. We found out afterwards that certain laws may not allow it. So instead we’re celebrating our election with a national party,” said Walt Freese, Chief Euphoria Officer of the Vermont based ice-cream maker. ‘Democracy never tasted so sweet,’ added Freese summing up the effort.” So even kids, who cannot vote, get free ice cream.
The current selfie battle now is the similar one, with people saying that I’m trying to stifle civic-minded conduct. With reports of going after Justin Timberlake for posting a ballot selfie raising everyone’s hackles, I thought it worth re-explaining what the issue is with what looks to be very patriotic conduct:
We haven’t had the secret ballot throughout American history. Indeed, before the rise of the “Australian ballot” printed by the government, political parties in some places printed their own ballots. Each party’s ballot would be a different color. There would even be parades to march people to the polls with their colored ballots. So it was very easy to see how people voted — and to reward or punish them if desired.The secret ballot made vote buying and coercion that much more difficult. Sure, I can tell you I voted for the candidate you wanted me to — but how would you know if I were telling the truth? Indeed, turnout went down as each state adopted the secret ballot.These days in the United States, vote buying is relatively rare. When it does happen, it usually requires the cooperation of someone in the polling place to verify how people voted or through an absentee-ballot scam….But it is not just the 1970s. We have prosecutions for vote buying every year, and many of them involve absentee ballots, where it is possible to see how someone voted and collect and mail their ballot.
So on the one hand we have the value of First Amendment expression. On the other hand, we have the danger of a kind of voter fraud that actually happens—the sale of votes, or the coercion of votes (by a spouse, employer, union boss, church leader, whoever) that can be facilitated when one can confirm how one voted. This kind of fraud, unlike voter impersonation fraud, actually happens in large enough numbers to be a real problem. And while it hasn’t happened with ballot selfies yet, the two kinds of voting are similar enough that a state should be able to take steps before the problem gets out of hand. A ban on ballot selfies would prevent the photographing and sharing of a voted ballot, not other expressive conduct, like pictures in the voting booth, posts saying who you voted for, etc. As I wrote: “Tell the world you voted for Trump! Use skywriting. Scream it to the heavens. We just won’t give you the tools to sell your vote or get forced to vote one way or another.”
The biggest hurdle in my view to the first amendment argument for a ballot selfie ban is when states allow absentee balloting. Those states which allow absentee balloting but ban ballot selfies have to justify one over the other. And I think the more that states with mail in or absentee voting do to prevent voters from sharing their voted ballots with others, the more likely it would be for courts to uphold the ban.
Ultimately, it may be the Supreme Court which has to resolve the dispute.
In the end, this is not about stifling civic minded conduct. As with the Ben and Jerry’s issue, it is preventing other activities which threaten the integrity of our elections.