Bipartisan federal lawsuit filed over voter selfies ban
Colorado Secretary of State Wayne Williams responded the ban protects voters from intimidation
DENVER—A federal lawsuit over voter selfies has been filed by state Sen. Owen Hill, R-Colorado Springs, and Democratic first-time voter Scott Romano, of Littleton. The lawsuit comes after the ACLU of Colorado and Advancing Colorado blasted the law for chilling voters and intimidating Coloradans. Shortly thereafter the Libertarian Party of Colorado threatened to file a lawsuit over the law. Hill says that Colorado’s ballot selfie ban “chilled” him and other voters “from being permitted to engage in the simple act of posting a photo of a ballot as a political expression.” Colorado Secretary of State Wayne Williams and Attorney General Cynthia Coffman are listed as the defendants in the suit.
Advancing Colorado Executive Director Jonathan Lockwood applauded Hill’s lawsuit and released the following statement:
“Sen. Hill is a Millennial and he totally gets it. We used to say it takes a village, now we can start saying it takes a Millennial. This lawsuit says what virtually every Coloradan believes, that it is our right to publish a selfie and celebrate the act of voting. Coloradans shouldn’t be chilled from expressing their free speech rights and it is surprising to see government officials defend such an archaic law.”
Colorado’s law, which originated in 1891, makes it a misdemeanor for a voter to show his or her ballot “in such a way as to reveal its contents.”
The federal lawsuit points out that similar bans on photos of ballots have been struck down in other states, including New Hampshire and Indiana and asks for the court to declare Colorado’s law unconstitutional and ban the state from enforcing it.
“This act of voting is one of the most sacred rights that we can enjoy here and if we choose to do that publicly that is joined with another one of our rights – that is free speech,” said Hill. ‘This is a great way to encourage people to be active, to be a part of their process.”
“We believe the current law protects the integrity of the election and protects voters from intimidation or inducement. In fact, given Colorado’s unique election system and rise of social networking, the prohibition may be more important in Colorado than in other states and may be more timely today than ever. “
The case is receiving legal help from the Pillar of Law Institute, which litigates First Amendment cases.
Hill said there is also an opportunity to address this issue in the upcoming 2017 legislative session.
Michael Fransisco of MRD Law, the attorney who filed the documents, is confident the case is both needed and straightforward.
“Everyone in Colorado should have the right to speak about their voting decisions, including the ubiquitous use of cell phone pictures to express a point,” Fransisco noted. “The First Amendment protects this valuable form of political discourse.”
Denver District Attorney Mitch Morrissey issued a threat to Colorado voters Thursday that it’s criminal in Colorado to show your election ballot to other people and warned that voter selfies are illegal too. His spokesperson explained it is to avoid voter fraud where it could be “something as simple as free drinks.” The Colorado Springs Gazette said, “Colorado voters beware: Facebooking, tweeting, or Snapchatting your ballot could get you in trouble.” The Pueblo Chieftain said voters should avoid sharing these type of selfies too. KCNC-CBS 4 told Coloradovoters, “It’s okay to take a selfie with a ballot in hand, but don’t you dare show who you voted for.”
Colorado Republican Secretary of State Wayne Williams says it’s a misdemeanor that carries up to a $1,000 fine and up to a year in jail.
“The reason for that is the possibility of selling the vote or trading the vote for something,” Williams told CBS 4’s Rick Sallinger.
The ACLU of Colorado is arguing Morrissey and his office is wrong. ACLU of Colorado Legal Director Mark Silverstein said that courts in Indiana and New Hampshire recently upheld individuals’ rights to post voter selfies. Silverstein released a statement calling on Morrissey to “immediately retract his misguided threat to prosecute voters for taking and sharing ballot selfies. It poses the risk of chilling voters who need assistance from asking for it if they fear that showing their ballot will violate the law.” The ACLU of Colorado’s full statement can be read here.
Seven other states have legislation that specifically allows people to take their pictures with their ballots and post them on social media, Silverstein said.
“We’re asking him to retract his statement,” Silverstein told the Denver Post. “It’s a threat of prosecution as far as I can tell.”
According to the Denver Post, Morrissey’s office issued a news release Thursday morning saying Colorado state law includes ballot selfies posted on social media. It is a misdemeanor offense to do so, the release said.
Colorado statute §1-13-712 says, “No voter shall show his ballot after it is prepared for voting to any person in such a way as to reveal its contents.”
The prohibition on sharing a completed ballot is an effort to guard against potential voter fraud, Morrissey spokesperson Lynn Kimbrough said. She added that the potential for someone to purchase votes is an example of the type of fraud that could potentially occur.
“It could be something as simple as free drinks at Joe’s bar for anybody who votes for my candidate,” Kimbrough said, conjuring up what she imagines a possible situation. “If you bring a picture of your ballot to show me you voted for my friend, I’ll give you a free drink. It was not designed to limit a person’s free speech in terms of sharing who you have voted for.”
“I was appalled,” state Rep. Paul Rosenthal, D-Denver, said of the statute, when he himself put a photo online of his ballot, and was told by a friend to take it down lest he face prosecution. Rosenthal has written legislation twice to repeal the law, but was ineffective at gaining support from fellow legislators at the Statehouse.
Rosenthal credits the law to when the mob, the Ku Klux Klan, and one’s employer pressured individuals into voting a certain way.
“Those days are over,” Rosenthal said. “Taking a picture of your ballot and putting it on Facebook is your U.S. constitutional right to speak as you wish. And the Colorado Constitution goes further and says you have a right to publish.”