Selfie-informed voting: how the ballot selfie contributes to rational ignorance.

Author:Medeiros, Laura E.
 
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"[A] picture of a valid voted ballot, unlike a simple expression of how someone voted, is unique in being able to prove how someone voted." (1)

  1. INTRODUCTION

    The First Amendment to the U.S. Constitution protects citizens from government encroachment on speech. (2) The First Amendment also protects the right to form political parties. (3) States are permitted, however, to regulate elections by enacting "reasonable regulations of parties, elections, and ballots." (4) Depending on the nature of the restriction, courts will either apply strict or intermediate scrutiny to determine the constitutionality of a state statute attempting to regulate elections. (5)

    The Supreme Court has extended First Amendment protection to Internet speech. (6) Facebook posts, blog posts, and tweets clearly fall into the category of protected speech, as they can convey opinions to people all over the country and the world. (7) In our ever-increasingly technological world, courts have considered Facebook "likes" speech under the First Amendment, leading to the conclusion that courts will also consider shares of other users' content as protected speech. (8) Therefore, it is no surprise that digital images and photographs are also granted First Amendment protection. (9) Recently, digital images and videos in polling places have become increasingly popular. (10) Specifically, more and more voters are taking so-called "ballot selfies"--photos of marked ballots posted on social media. (11) When legislatures attempt to regulate this collision between technology, political affiliations, the secret ballot, and free speech by placing prohibitions on ballot selfies, the courts must determine whether these laws pass constitutional muster. (12)

    In August 2015, a federal court in New Hampshire invalidated a state law prohibiting voters from taking and posting ballot selfies. (13) Subsequently, the First Circuit Court of Appeals affirmed the holding of the New Hampshire District Court, applying the lesser standard of intermediate scrutiny. (14) In October 2015, a federal court in Indiana overturned a similar law. (15) Both the New Hampshire and Indiana district courts held that the respective state law failed strict scrutiny and violated the First Amendment's right to free speech. (16) Additionally, the courts found the governments unpersuasive in their arguments that ballot selfies can lead to vote buying and voter coercion. (17)

    This Note explores the history of vote buying and voter coercion as it relates to the First Amendment protection of the right to free speech. (18) Part II.A examines the history and evolution of the secret vote and Australian ballot system. (19) Part II.B discusses the conflict between the First Amendment right to free speech--focusing on the realm of political speech--and statutes enacted to prohibit electioneering and protect the sanctity of the voting booth. (20) Part II.C continues with an examination of the First Amendment implications of social media posts. (21)

    Part II.D considers the unconstitutional New Hampshire and Indiana statutes banning ballot selfies, as well as statutes that seemingly legalize the ballot selfie. (22) Part II.D also discusses the district courts' decisions in Rideout I and Indiana Civil Liberties Union, as well as the First Circuit's holding in Rideout II. (23) Part II.E concludes by confronting the lingering problem of uninformed voters and the theory of rational ignorance. (24)

    Part III of this Note analyzes and addresses the main arguments against ballot selfies, and proffers that states should harness the power of social media in political campaigns in an effort to inform the electorate. (25) Part III.A discusses the unpersuasive argument that an outright ban on ballot selfies is constitutionally permissible as a means of preventing voter fraud. (26) Part III.B asserts that, while ballot selfies and similar political posts encourage the electorate to become engaged in the political process, they also foster uninformed voting. (27) Finally, Part III.C argues that states should be proactive in informing their electorate and use social media to accomplish this goal. (28)

  2. HISTORY

    1. The Evolution of the Secret Ballot and the Introduction of the Australian Ballot System

      Voting was once a very public affair. (29) Initially, states conducted elections by a showing of hands, a voice vote, or even dispensing beans into jars. (30) Gradually, written ballots replaced these voting methods. (31) By the end of the Revolutionary War, almost every state voted by written ballot. (32)

      When the written ballot was introduced, it was not issued by the government; rather, voters created their ballots. (33) Political parties took advantage of this liberty and prepared their own ballots. (34) Parties printed party ballots, which came to be known as "party strips" or "unofficial" ballots, on colored paper in various sizes so that each party's ballot was distinct. (35) Creating and distributing distinctive ballots allowed parties to keep track of constituents and identify for whom they voted. (36) The party strip ballots guaranteed that there was no right to a secret vote even with written ballots, and opened the door to vote buying and coercion. (37)

      A major shift occurred when states began to adopt the Australian ballot system. (38) Under the new system, the state prepared all ballots. (39) The new ballots listed candidates from both parties and were cast in secret. (40) Proponents of the Australian ballot system asserted that a secret ballot would eliminate much of the fraud in elections. (41) Those in favor of the Australian ballot argued that it would eliminate parties' abilities to see how someone voted, thereby reducing vote buying. (42) Supporters also believed that the Australian ballot would prevent employers and creditors from intimidating or coercing citizens to vote a certain way. (43)

      Opponents of the Australian ballot system raised numerous arguments against the secret ballot. (44) For instance, they claimed that it would be an undue burden on voters' time. (45) They also contended that producing the ballots constituted another unnecessary expense to the state. (46) Additionally, they asserted that the Australian ballot system opened the door to abuse by ballot clerks, who distributed and collected the secret ballots. (47)

      While the arguments on both sides were valid, the proponents' predictions seem to have been right. (48) After the Australian ballot was introduced, vote buying and voter intimidation subsided. (49) This trend continued throughout this past century with very few known cases of vote buying or voter intimidation. (50)

      Both the Australian ballot system and the nonpublic polling place were adopted as a means to prevent voter fraud, intimidation, and vote buying. (51) As a result of the secret ballot, the polling place became a nonpublic forum. (52) Due to the adoption of the Australian ballot system, "the only expressive activity" that takes place at the polling place "is each voter's communication of his own elective choice." (53)

    2. Balancing the Right to Free Speech with Prohibitions on Electioneering

      Nevertheless, the introduction of secret ballots failed to eliminate all vote buying and coercion. (54) In response to continued voting issues, states and the federal government began to enact laws specifically aimed at vote buying, voter intimidation, and electioneering. (55) While statutes prohibiting vote buying and voter intimidation were quite commonplace and generally accepted, opponents often challenged statutes prohibiting electioneering on constitutional grounds--arguing that the bans were in direct conflict with the right to free political discourse. (56)

      First Amendment protection fundamentally extends to political speech. (57) Political speech includes "discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes." (58) The First Amendment is implicated most fully in political campaigns. (59) Courts balance two competing interests in deciding cases involving political speech at the polling place: the fundamental interest in freedom of political speech, and the important interest of protecting citizens from undue influence at the polling place. (60)

      In evaluating restrictions on speech, the Supreme Court first determines whether the restriction is content-based or content-neutral. (61) The Court applies strict scrutiny to content-based restrictions, where the restriction targets the message the speech conveys. (62) On the other hand, the Court applies intermediate scrutiny to content-neutral restrictions, which regulate "time, manner, and place." (63)

      In the flagship case of Burson, the Supreme Court held that a prohibition on electioneering within a certain radius of the polling place was constitutional. (64) The Court acknowledged that protecting voters from intimidation and maintaining control of elections were both compelling government interests. (65) Applying strict scrutiny, the Court stated, "some restricted zone is necessary" to ensure that the State's compelling interests are served. (66) In Burson, the Court disagreed with the respondent's argument that the law was overinclusive, and opined that ordinary intimidation laws address only those acts that obviously interfere with elections. (67) The Court also rejected the respondent's argument that the statute was underinclusive because it did not address all kinds of speech around the polling place. (68)

      While the Supreme Court held that some restrictive zone around the polling place was necessary in Burson, the Court struck down an Alabama law that made it a crime to electioneer or solicit votes on election day in Mills v. Alabama. (69) The Court overturned the Alabama Supreme Court's holding that the law was reasonable despite restricting the freedoms of speech and press. (70)...

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