Copyright Law

Blogger Threatened Over Ballot Photo As 19th Century Laws Meet 21st Century Technology, Sensibility

By Eric Robinson

As noted in the Documenting Your Vote section of CMLP's Legal Guide, several states have laws prohibiting voters from displaying their ballots to someone else.

In Missouri, an anonymous blogger who sponsored a fake campaign for St. Louis Blues hockey player T.J. Oshie to become mayor of O'Fallon, Missouri posted a picture of a ballot with Oshie's name written in. (Although the blog remains, the photo -- available here -- has been removed.) This is an apparent violation of Mo. Rev. Stat. § 115.637 (14), which prohibits a voter from "allowing his ballot to be seen by any person with the intent of letting it be known how he is about to vote or has voted." Violation is a a class-four election offense, punishable by up to a $2,500 fine and/or up to a year in jail.

What the blogger probably saw as a harmless prank was taken seriously by St. Charles County elections director Rich A. Chrismer, who told the St. Louis Post-Dispatch that the blogger "violated the law, and I'm going to prosecute." "They may have thought the photo was cute," he continued, "but it was very serious."

Why all the fuss?

"You can't violate something as sacred as the ballot," Chrismer told the Post-Dispatch. "People won't trust going to a polling place if they think somebody is walking around with a camera."

The U.S. Supreme Court explained the rationale for serect ballots in the majority opinion in Burson v. Freeman, 504 U.S. 191 (1992), by explaining the history of voting in this country. This is worth quoting at length:

During the colonial period, many government officials were elected by the viva voce method or by the showing of hands, as was the custom in most parts of Europe. That voting scheme was not a private affair, but an open, public decision, witnessed by all and improperly influenced by some. The opportunities that the viva voce system gave for bribery and intimidation gradually led to its repeal.

Within 20 years of the formation of the Union, most States had incorporated the paper ballot into their electoral system. Initially, this paper ballot was a vast improvement. Individual voters made their own handwritten ballots, marked them in the privacy of their homes, and then brought them to the polls for counting. But the effort ofmaking out such a ballot became increasingly more complex and cumbersome.

Wishing to gain influence, political parties began to produce their own ballots for voters. These ballots were often printed with flamboyant colors, distinctive designs, and emblems so that they could be recognized at a distance. State attempts to standardize the ballots were easily thwarted - the vote buyer could simply place a ballot in the hands of the bribed voter and watch until he placed it in the polling box. Thus, the evils associated with the earlier viva voce system reinfected the election process; the failure of the law to secure secrecy opened the door to bribery and intimidation.

Approaching the polling place under this system was akin to entering an open auction place. . . .  In short, these early elections "were not a very pleasant spectacle for those who believed in democratic government."

. . . Some Australian provinces adopted a series of reforms intended to secure the secrecy of an elector's vote. The most famous feature of the Australian system was its provision for an official ballot, encompassing all candidates of all parties on the same ticket. . . .  The Australian system also provided for the erection of polling booths (containing several voting compartments) open only to election officials, two "scrutinees" for each candidate, and electors about to vote. . . .

After several failed attempts to adopt the Australian system in Michigan and Wisconsin, the Louisville, Kentucky, municipal government, the Commonwealth of Massachusetts and the State of New York adopted the Australian system in 1888. . . .

The triumphs of 1888 set off a rapid and widespread adoption of the Australian system in the United States. By 1896, almost 90 percent of the States had adopted the Australian system. This accounted for 92 percent of the national electorate.

Burson v. Freeman, 504 U.S. at 200-05 (citations omitted).

In Burson, the Court upheld Tennessee's law restricting campaign materials and vote solicitation within 100 feet of a polling site. And while it did not directly rule on other restrictions on free speech in and around polling sites, the majority impiled that other restrictions necessary to protect balloting would also survive the "strict scrutiny" test.

In sum, an examination of the history of election regulation in this country reveals a persistent battle against two evils: voter intimidation and election fraud. After an unsuccessful experiment with an unofficial ballot system, all 50 States, together with numerous other Western democracies, settled on the same solution: a secret ballot secured in part by a restricted zone around the voting compartments. We find that this widespread and time-tested consensus demonstrates that some restricted zone is necessary in order to serve the States' compelling interests in preventing voter intimidation and election fraud.

504 U.S. at 206.

In this "let it all hang out" age, when it seems that everyone is posting even the most intimate details of their lives online, a law prohibiting someone from posting a picture of their own ballot may seem quaint and silly. But the concern that led to the enactment of these laws in the 19th century -- the integrity of elections -- remains important in the 21st, even in the face of new technologies. See, e.g., Bridgeman v. McPherson, 141 Cal. App. 4th 277 (Cal. Ct. App. 2006), rev. denied (Cal. 2006) (upholding California law requiring waiver of ballot secrecy to be signed by soldiers voting by faxed absentee ballot)).

This may be one area where old concerns may trump modern notions of opening every aspect of our lives to others online.

Full post as published by Citizen Media Law Project on April 28, 2009 (boomark / email).