A bill that passed the Colorado legislature two weeks ago would make displaying one’s own marked ballot legal, and also allow for the display of photographs of them, or “ballot selfies.” As the bill awaits signature from Colorado Gov. John Hickenlooper, some pundits have made eleventh-hour warnings in support of a veto, including Hans von Spakovsky and Grant Strobl of the Heritage Foundation. They write that the bill is “a dangerous and unjustified step backward,” and claim that it would facilitate vote buying and “open the door to intimidation and threats against voters for not voting a particular way.”
Their arguments prove baseless and, far worse, support a dangerous school of thought that threatens free speech far beyond ballot selfies.
It would be poor sportsmanship to chastise von Spakovsky and Strobl for their late entry into the debate. But, like other pundits suddenly opposing the bill, they omit an important fact from their piece: the current Colorado law was enjoined in a federal lawsuit last fall (with yours truly serving as co-counsel for the plaintiffs). The current law cannot be enforced against most ballot photography, and freed all Colorado voters to post ballot selfies on election day. Here’s one of our clients, Scott Romano, enjoying free speech:
© Scott Romano. Used with permission.
So, it is disingenuous for pundits to warn about “open[ing] the door” in Colorado, because it has been open since November.
The key fault of von Spakovsky and Strobl’s reasoning is that it contradicts just about everything in First Amendment law. A ballot selfie is an unequivocal statement of how someone voted. It is political speech, which is at the core of the First Amendment. This is the last area, the very last, government can engage in broad censorship and claim that it is permissible because “[t]here are many [other] ways for voters to engage in political speech[.]”
Moreover, if government seeks to protect a compelling interest, like voting rights, the law must still be narrowly tailored to prevent censorship. In making their case against this new law, von Spakovsky and Strobl instead show that voting rights are adequately protected by other laws. Voter intimidation and vote buying are illegal in Colorado and under federal law, and will remain so if Gov. Hickenlooper signs this bill. This is precisely how government can act to secure voting rights while preserving our constitutional right to free speech.
After the injunction in our case—where plenty of voters besides our clients took ballot selfies—“fraudsters” did not “try to influence how people vote” in Colorado with ballot selfies. In fact, there has not been a single reported case of using ballot selfies for fraud, even in the dozens of states that have never prohibited them. The critics are left to warn of bogeymen, implying that the voter fraud and intimidation cases that we know about are but the tip of the iceberg, and that there is much more that we simply have not detected. But even accepting this dubious proposition does not support broad censorship: if unaddressed fraud is really out there, it needs to be seriously confronted, not papered over with misdemeanor charges against citizens who are simply celebrating their vote.
It would naïve to deny that this school of thought—censorship based on innuendo and imagination—does not pose broader threats to free speech. Indeed, von Spakovsky in particular, given his outspoken positions on the dangers of campaign finance law, does an unfortunate service to our opponents, who warn of “corruption” as carelessly as he does of fraud to justify invasive and overbroad censorship. And it does not get any broader than Colorado’s ban: while most states justify their restrictions on displaying ballots as polling place regulations, 95% of Coloradoans vote by mail. Instead of giving von Spakovsky and Strobl pause, absent censorship, to them vote-by-mail only supports more fears about the rebirth of Tammany Hall.
The Colorado General Assembly was wise to amend the law, potentially sparing the state years of litigation to establish what is already clear in our preliminary injunction. Governor Hickenlooper should not fear the bogeymen and recognize that the ballot selfie is not a problem to be solved; it is a simple, important, and exciting form of political speech.