Breaking: Divided 6th Circuit Restores Michigan Ban on Ballot Selfies for this Election

A majority opinion (by Judge Sutton), a concurrence, and a dissent.

Judge Sutton’s main point is that this comes too late in the election season for Michigan to make a change now: “Call it what you will—laches, the Purcell principle, or common sense—the idea is that courts will not disrupt imminent elections absent a powerful reason for doing so.” (More on the Purcell principle).

But Judge Sutton also takes a nod at the merits, in what is much in line with my own views:

The State’s policy advances several serious governmental interests: preserving the privacy of other voters, avoiding delays and distractions at the polls, preventing vote buying, and preventing voter intimidation. Crookston tries to minimize the risk of vote buying as a relic of a bygone electoral era. But plenty of cases—in this circuit alone—show otherwise. See UnitedStates v. Robinson, 813 F.3d 251, 254 (6th Cir. 2016) (affirming a vote-buying conviction);United States v. Turner, 536 F. App’x. 614, 615 (6th Cir. 2013) (same); United States v. Young,516 F. App’x. 599, 600–01 (6th Cir. 2013) (same). The links between these problems and the prohibition on ballot exposure are not some historical accident; they are “common sense.”Burson, 504 U.S. at 207. At the same time, it is far from clear that Crookston’s proposal creates no risk of delay, as ballot-selfie takers try to capture the marked ballot and face in one frame—all while trying to catch the perfect smile.

Nor do we think much of Crookston’s argument that the State has offered no evidence of ballot photography being used in vote-buying schemes or to intimidate voters. The SupremeCourt made quick work of a similar argument in Burson. “The fact that these laws have been in effect for a long period of time,” it reasoned, “makes it difficult for the States to put on witnesses  who can testify as to what would happen without them.” Id. at 208; see also id. at 214–16 (Scalia, J., concurring). Just so here.

It also is not clear whether a ban on ballot selfies “significantly impinges” Crookston’s First Amendment rights. A picture may be worth a thousand words, but social media users can (and do) post thousands of words about whom they vote for and why. Although the loss of any potential First Amendment freedom deserves serious consideration, the government’s interests in a stay outweigh any imposition on the expressive rights of Crookston and other would-be selfietakers— particularly given the privacy interests of other voters in not having their votes made public….

We recognize, to be sure, that other courts have struck down similar laws in thoughtful opinions. See Rideout v. Gardner, __ F.3d __, 2016 WL 5403593 (1st Cir. 2016); Ind. Civil Liberties Union Found. v. Ind. Sec’y of State, No. 1:15-cv-01356, 2015 WL 12030168 (S.D. Ind. Oct. 19, 2015). But these decisions concerned laws that were targeted at ballot selfies, not general bans on ballot-exposure and photography at the polls. And, most importantly, theselawsuits did not seek to enjoin longstanding statutes on the eve of a presidential election. One filed 728 days before the next major election. Rideout, 123 F. Supp. 3d at 227. The other was filed two months after the legislature enacted the law. Ind. Civil Liberties Union, 2015 WL 12030168, at *1.

This is far from the last word, in this case and others. Ultimately, I predict this is headed to SCOTUS.

 

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