Judge lets state’s ban on bal­lot self­ies stand

Daily Freeman (Kingston, NY) - - STATE NEWS - By Larry Neumeis­ter

NEW YORK >> Al­low­ing bal­lot self­ies at thou­sands of polling places in New York state just be­fore a pres­i­den­tial elec­tion would “wreak havoc,” a judge said Thurs­day in re­ject­ing a re­quest to im­me­di­ately shut down an 1890 law ban­ning vot­ers from show­ing marked elec­tion bal­lots to oth­ers.

U.S. Dis­trict Judge P. Kevin Cas­tel’s de­ci­sion was con­sis­tent with a Cal­i­for­nia judge’s Wed­nes­day rul­ing say­ing it would be un­fair to vot­ers and polling place work­ers to lift a ban on shar­ing pho­tos of marked bal­lots. A fed­eral judge in Colorado has yet to rule on ef­forts to lift that state’s selfie ban.

Cas­tel said in a writ­ten rul­ing that peo­ple who want to pub­li­cize bal­lot choices can do so through “other pow­er­ful means.”

“The pub­lic’s in­ter­est in or­derly elec­tions out­weighs the plain­tiffs’ in­ter­est in tak­ing and post­ing bal­lot self­ies,” he said.

A re­cent re­view by The As­so­ci­ated Press showed bal­lot self­ies are le­gal in 20 states and the Dis­trict of Columbia, il­le­gal in 17 states, and the le­gal sta­tus is mixed or un­clear in the rest.

Cas­tel noted that early Amer­i­can elec­tions plagued by voter in­tim­i­da­tion and elec­tion fraud led to a series of re­forms in the late 1800s to pro­tect the in­tegrity of elec­tions.

“In­deed, the ubiq­uity and ease of smart­phone tech­nol­ogy plau­si­bly in­creases the risk of one form of voter in­tim­i­da­tion,” Cas­tel said. “With­out the statute, em­ploy­ers, unions, and re­li­gious groups could en­cour­age their mem­bers to up­load im­ages of their marked bal­lots to a sin­gle lo­ca­tion to prove their com­mit­ment to the des­ig­nated can­di­date.”

Cas­tel said the pub­lic in­ter­est would not be served by im­me­di­ately strik­ing down the law on First Amend­ment grounds, as three vot­ers and their lawyers had re­quested. The court case will pro­ceed with the de­vel­op­ment of more ev­i­dence be­fore a fi­nal rul­ing is made.

The plain­tiffs brought the law­suit only 13 days be­fore the elec­tion even though smart­phone cam­eras have been in heavy use since 2007, the judge said.

“Here the in­ter­est of the gen­eral pub­lic in the out­come of an elec­tion is pro­found,” he said. Block­ing the law would se­ri­ously dis­rupt an elec­tion process that in­volves 60,000 poll work­ers at 5,300 poll sites statewide, he added.

“Not only would a pre­lim­i­nary in­junc­tion wreak havoc on elec­tion-day lo­gis­tics, real con­cerns ex­ist about the de­lays and pri­vacy in­tru­sions that bal­lot self­ies could cause,” the judge said.

At­tor­ney Leo Glick­man said plain­tiffs are “dis­ap­pointed in the de­ci­sion but grat­i­fied that we have brought this is­sue to the pub­lic’s at­ten­tion.”

He said mem­bers of the state Leg­is­la­ture had con­tacted his of­fice about the pos­si­bil­ity of re­peal­ing the law.

“So one way or an­other we think that by next year’s elec­tion peo­ple will be able to en­gage in this form of po­lit­i­cal speech,” Glick­man said.

The state at­tor­ney gen­eral’s of­fice de­clined through a spokes­woman to com­ment.

Stephen Kitzinger, a lawyer for New York City, said his of­fice was “pleased that the court rec­og­nized how im­por­tant this law is to as­sur­ing the in­tegrity of the elec­toral sys­tem and main­tain­ing bal­lot se­crecy.”

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