By Bob Egelko, San Francisco Chronicle
Voters will have many options at the polls Tuesday. Taking a selfie of their ballot won't be one of them.
The American Civil Liberties Union argued in federal court Wednesday that a 125-year-old California law banning voters from showing their marked ballots to anyone else violates freedom of expression. Voters, lawyers for the ACLU said, should be free to take pictures of their ballots and use them to persuade their friends.
A federal judge in San Francisco wasn't impressed.
The law had a legitimate purpose when it was enacted, U.S. District Judge William Alsup said, because some employers in the past had taken voters to the polls, ordered them to display their ballots afterward and fired anyone who defied the company line. But even if current enforcement of the photo-sharing ban crosses constitutional boundaries, he said, suspending it less than a week before the election would be "a recipe for confusion."
"No one is at fault more than the ACLU for bringing this lawsuit at the last minute and trying to jam this down their throat," Alsup said.
Ballot-box selfies will be allowed at future elections, because the Legislature has repealed the law, effective Jan. 1. ACLU attorney Michael Risher said his organization had waited until Monday to go to court because it had been negotiating with Secretary of State Alex Padilla and had hoped to avoid a lawsuit.
Padilla, the state's top elections official, had supported repeal of the 19th-century law and said he would abide by a court order to suspend it.
But he has advised local registrars' offices that the law against sharing the contents of ballots prohibits photography in voting booths next week, although news organizations can take pictures of candidates casting their ballots.
A court-ordered change would have required retraining for workers at California's 14,101 polling places on a "massive scale," Deputy Attorney General Emmanuelle Soichet, Padilla's lawyer, told Alsup.
But Risher noted that similar laws in other states have been struck down by a majority of the federal courts that have considered them.
In a state where more than half the voters cast absentee ballots, Risher said, the law allows them to photograph their ballots, but makes it a crime to share the photos with others by posting them online. At least for those voters, he said, immediately lifting the ban on photo-sharing would cause no polling-place disruption or any other harmful effects.
Alsup countered that any judicial intervention at this point would raise too many questions — what about the voter who mounts a cellphone on a stick for a better shot, which might also show the next voting booth? Or the voter who recorded a ballot on video, with vocal accompaniment, while someone in the next booth was trying to concentrate?
Risher said such intrusions are already illegal. But the judge said potential problems "should not be figured out on the fly in a two-minute drill in the last few days of the election cycle."
The ACLU hasn't decided whether to seek an emergency order from a federal appeals court, Risher said afterward. Padilla issued a statement noting that Californians can still take their smartphones to the polls to access their sample ballots or do last-minute research on ballot issues.
"In the meantime," he said, "voters can still take a selfie with their 'I Voted' sticker."
(c)2016 the San Francisco Chronicle
