Voting Booth Procedures: Smartphones and Social Media Photos

Wednesday, November 7, 2012, by Kaitlin Powers

Election day in the United States on November 6th resulted in a deluge of social media postings including photographs of ballots cast. But what may seem to be merely proud expressions of voters exercising their right to vote may actually violate the law.

In North Carolina, voters are barred from photographing their completed ballots. In fact, only seven states do not have statutes which might be interpreted to bar such snapshots or recordings of completed ballots (Wyoming, Vermont, Tennessee, Rhode Island, North Dakota, Delaware, and Alabama). Similarly, voters are not permitted to use cameras in polling locations in Florida, Georgia, Kentucky, Michigan, Nevada and Texas. The state of Wisconsin has even warned voters that photographing or recording a ballot and sharing it via social media is election fraud, a felony. Gizmodo provides a complete list of states’ photographing and recording statutes, as does the Citizen Media Project.

Some states also ban the use of cell phones at polls completely, regardless of whether the phone is being used as a camera. North Carolina, Michigan, Ohio, and Washington, D.C. all proscribe the use of phones at the polls.

Such laws raise several legal issues:

(1) Do these restrictions infringe on voters’ free speech rights?

Many of the laws have a basis in preventing voters from comprising the concept of a “secret ballot” by eliminating their potential to record the actions of others and thereby compromise their privacy. However, it is not clear that this issue remains when voters are simply sharing their own votes. Regardless, the presence of recording devices at the polls may cause some voters to feel that the secrecy of their ballot has been sacrificed. Officials have offered another rationale: photographs of ballots have been used in the past to orchestrate vote-buying schemes.

(2) Do these laws disenfranchise voters?

Because many voters might use their smartphones to either compile a list of those they wish to vote for or to conduct last minute research at the polls, some voters may argue that the prohibition of cellphones in the voting booth prevents some voters from fully exercising their constitutionally protected right to vote. Some voters have actually had their smartphones confiscated at the polls and have suggested that loss of the phone limited their ability to vote for those candidates they supported. Others have countered that allowing phones at the voting booth may promote attempts to unduly influence those inside the polls due to an increased ability to communicate with them while they are actually deciding whom to select.

Ultimately, as Wired.com’s Ryan Tate concludes:

It seems inevitable that voting laws will give way to allow greater use of iPhones, iPads and other mobile devices at the ballot box. As voters’ lives have become more hectic, there’s been a movement to make voting more convenient, whether through absentee ballots, same-day registration, or early voting at polling places opened weeks ahead of election day. In that context, rewriting the law to treat a smartphone like a voter guide or newspaper rather than an illicit vote recorder or voting partner seems like a modest reform.