Federal District Court Upholds NY Ballot Selfie Law Against First Amendment Challenge, Applying Strict Scrutiny

In a careful 41-page opinion in Silberberg v. Board of Elections, a federal district court in New York has upheld against First Amendment challenge a New York law that bars photographing and displaying one’s marked ballot. The court held that the state’s interest in preventing vote buying and voter coercion were compelling, and that the law was narrowly tailored to meet this compelling interest. The Court relied heavily on the Supreme Court case of Burson v. Freeman, upholding electioneering-free zones around polling places.

This is a careful, well considered opinion which is very much in line with my own views on the subject. This case will likely be appealed to the Second Circuit, and if affirmed, it would create a conflict with the First Circuit’s opinion in Rideout v. Gardner striking down New Hampshire’s ban on ballot selfies under the First Amendment. This case could end up at the Supreme Court.


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