As millions of voters go to the polls on Nov. 8 to decide America’s next president, many are unwittingly breaking the law with their ballot selfies. A long-standing prohibition on showing a person’s ballot with “apparent intention” of who they are voting for prohibits photos with a marked ballot, thus making the much beloved ballot selfie a fifth-degree felony.
In Ohio, State Reps. Niraj Antani, R-Miamisburg, and Mike Duffey, R-Westerville, have spearheaded efforts to overturn the ban, cosponsoring House Bill 609, which is currently pending in the state legislature and would allow voters to photograph their own marked ballots.
Joshua Eck, spokesperson for Ohio Secretary of State Jon Husted, offered an explanation of the law in a statement.
“This law was written before the age of selfies and social media, so it’s clear lawmakers did not intend to limit anyone’s free speech, but instead protect voters from intimidation,” Eck said. “The Secretary does not believe posting a photo of your vote on social media is a problem and would not have an issue with the legislature making that clarification in law.”
Husted instead encouraged local county election boards to consult their county prosecutor before enforcing the law.
The law is not strictly enforced within the Buckeye State, and exceptions are included for those such as the disabled who may otherwise be unable to vote. While ballot selfie laws have made popular headlines recently, there doesn’t appear to be large-scale prosecutions for the practice in Ohio.
The debate has largely centered on whether the ballot selfies themselves constitute an expression of free speech covered by the First Amendment, with a federal court recently ruling in Michigan that ballot selfie bans are unconstitutional. Privacy in the voting booth has always been a treasured part of American elections, though some argue the law’s antiquated origins mean it’s time for a change.
“In my mind, Ohio’s law is clearly unconstitutional. The federal court in New Hampshire agreed,” Duffey said in a statement. “Some folks say, ‘Well, this law is never enforced anyway, so why change it?’ but I respond, ‘Because it hurts our justice system to have laws that are unenforced.’ It’s not supposed to be a joke – we should work to repeal unconstitutional laws. This is free speech.”
Election day is on Nov. 8, with polls open from 6:30 a.m. to 7:30 p.m. Voters looking for more information in the state of Ohio can click here to learn more.