Editor’s note: During the holidays, Carolina Public Press will be reposting some of our highlight stories from 2024. Today’s story looks at one woman’s efforts to challenge the state law against taking selfies with your ballot. This article originally appeared on Nov. 5.
Libertarian voter and state Senate candidate Susan Hogarth broke the law on March 5 with a single Tweet. Hogarth took a selfie that included her completed primary election ballot inside a Wake County voting enclosure, captioning it “(1) Laws against #ballotselfie are (B.S.). (2) I guess this is my endorsement for @ChaseForLiberty and @FireTheUniparty.”
Two weeks later, Hogarth said she got a letter from the State Board of Elections informing her that she was subject to criminal prosecution under North Carolina law. In North Carolina, taking photos, videos or otherwise recording the image of an official voted ballot carries a Class I misdemeanor charge.
Hogarth sued the State Board of Elections, the Wake County Board of Elections, Wake County District Attorney Lorin Freeman and Attorney General Josh Stein over the incident. She argued that banning so-called ballot selfies violated her First Amendment right to political speech.
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Her original goal was for the court to allow ballot selfies for all North Carolinians while the lawsuit progressed, Foundation for Individual Rights and Expression staff attorney Jeff Zeman said. FIRE is representing Hogarth in the suit.
While that did not happen, Hogarth did earn a small victory in late October.
Wake County District Attorney Lorin Freeman agreed she would not prosecute Hogarth for taking ballot selfies or posting them on social media this fall, as long as her photos didn’t capture any other person or their voted ballot.
The order applies to Hogarth, and Hogarth alone, State Board General Counsel Paul Cox said.
For everyone else, photography inside polling places remains “strictly prohibited,” he said. State law includes exceptions for those photographing or videotaping voters if they have the permission of both the voter and the chief judge of the precinct. Security cameras are also allowed.
On Oct. 28, Hogarth took advantage of her personalized court order with another ballot selfie posted to X.
Why are ballot selfies illegal?
State Board of Elections Executive Director Karen Brinson Bell said there are “legitimate reasons why everyone should be mindful of a secret ballot.”
Throughout United States history, people have tried to influence how others vote, she said. Bosses have threatened to fire employees if they don’t vote as instructed, and others have organized vote-buying schemes. Ballot selfies offer proof that voters have voted the way they promised they would, in these situations.
“These are practices of old that we think are very antiquated, but in the day and age of our phones going into the voting booth with us and people being able to capture an image, they are setting themselves up for possible harassment, for possible intimidation, for possible ramifications in their employment, and we don’t want that to be the circumstance,” Brinson Bell said.
Zeman said ballot selfies are “core political speech” that allow voters to express their enthusiasm for whom and what they support. The First Amendment protects political speech, he added.
“North Carolina already has laws on the books that directly address its interest in privacy and in everything else that the state said they had an interest in stopping by banning ballot selfies,” Zeman said. “They don’t have to do that by going directly after political speech.”
The United States has a hodge-podge of legislation around ballot selfies.
According to BallotPedia, 25 states allow ballot selfies, with four additional states permitting it only when posing with an absentee ballot. There are outright bans in 16 states. Legality is unclear in the remaining states.
In multiple states, including New Hampshire, Michigan and Indiana, ballot selfies were legalized after lawsuits, similar to the one Hogarth initiated.
Zeman said they’ve brought this track record of success to the court’s attention, but that laws differ slightly from state to state, so nothing is guaranteed.
After the election, the ballot selfie case will continue. There’s currently a pending motion to dismiss the case, filed by Freeman. Even if the case is drawn out through future elections, Zeman said, they will continue fighting for a preliminary ruling allowing all North Carolina voters to take ballot selfies in the meantime.
“Susan has done a brave thing here,” he said. “It takes a lot to stand up for your rights, to file a lawsuit, to challenge the government in the pursuit of protecting free speech, and that’s what Susan is doing here, and that’s what we hope to achieve.”
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