This photo is probably OK, but a photo showing a marked ballot is not.
(CN) — A federal judge on Wednesday refused to lift a soon-to-expire ban on ballot selfies in California, finding such a late change in election policy could cause confusion on Election Day.
For more than a century, California’s election code has banned voters from disclosing the content of their marked ballots.
The law, originally intended to protect the secrecy of ballots and deter voter intimidation, came under scrutiny in recent months as free speech advocates argued voters have a constitutional right to share photos of their filled-in ballots on social media.
On Sept. 29, Gov. Jerry Brown approved a new law that lets California voters voluntarily display their marked ballots, but the law doesn’t take effect until Jan. 1.
The American Civil Liberties Union sued the state on Monday, seeking a restraining order and injunction to make sure voters can legally take selfies with their ballots during the 2016 election season.
Ruling from the bench after a hearing on Wednesday, Alsup refused to grant the ACLU’s motion for a temporary restraining order.
The judge said the ACLU waited too long to file its lawsuit and that granting such relief less than a week before Election Day would cause confusion among poll workers and voters on Nov. 8.
“It’s not so simple as saying someone should be allowed to take a selfie,” Alsup said. “Imagine the questions poll workers will have.”
Voters could engage in disruptive behavior, such as using selfie sticks or shooting videos of themselves in polling booths, without more detailed guidance on what is and is not allowed at the polls, the judge said.
“The voting places are going to ask these kinds of practical questions,” Alsup said. “These kinds of nuanced decisions should not be made at the last minute. It requires some thought.”
ACLU attorney Matthew Risher said his client waited until Oct. 31 to file suit because it didn’t realize Secretary of State Alex Padilla planned to continue enforcing a ban on photos in polling places.
Risher said the ACLU began communicating with Padilla’s office about the issue two days after an Oct. 12 memo was sent to county election officials stating that its guidance on banning photos at polling places would remain unchanged for the 2016 election.
“No California law prohibits taking photos or videos at the poll,” Risher said. “The secretary distributed this memo that they have historically taken the position that it’s forbidden, but they don’t cite any statute that says it’s forbidden.”
Emmanuelle Soichette, a deputy attorney general for the state, said the Secretary of State has the authority to set policies for elections, even if those policies “may not carry the same weight” as regulations enacted by the Legislature.
Soichette argued it would be an undue burden to change the policy less than a week before Election Day because thousands of poll workers at 14,101 voting locations across the state are already trained on those policies.
Although Padilla supports the new law that lets voters take ballot selfies in future elections, Soichette said his office opposes the “morass and confusion” that a last-minute change in election policy would trigger across the state.
In rendering his decision from the bench, Alsup cited a Sixth Circuit ruling issued on Oct. 28 in Crookston v. Johnson, which overturned a federal judge’s block of the implementation of a new Michigan law invalidating marked ballots shown to others and banning the use of video cameras and cellphones at polling places.
In that ruling, the Sixth Circuit declined to alter Michigan’s voting protocols just 10 days before the election, finding that the plaintiff could have filed his lawsuit long before that pivotal date.
“Changing the policy now is a recipe for Election Day confusion for voters and poll workers alike,” Alsup said. “Any such change would also require nuanced policy decisions that no one should be making at the eleventh hour, absent a good enough reason for the delay.”
Alsup noted that if the lawsuit involved an allegation that people were being denied the right to vote based on their race or a similar issue, he would be more willing to grant relief.
Speaking outside the courtroom after the ruling came down, Risher said the ACLU was still mulling an appeal.
The ACLU attorney acknowledged the lawsuit might become moot on Jan. 1 when the state’s new law allowing ballot selfies takes effect. But he added there may still be issues facing California voters that decide to post ballot selfies on social media for the 2016 election, despite the still-active ban.