Judge Refuses To Block NY No-Selfie Ballot Law Because It Would 'Create Havoc To Not Enforce It'

from the wut? dept

Fri, Nov 4th 2016 1:16pm — Timothy Geigner

Our long national nightmare that has been this election cycle is nearly over. Election day is approaching and early voting has begun, which means you've probably already seen your social media connections happily and proudly posting about their votes. This is a good thing for democracy, in my opinion, as celebrations of participation can only encourage others to participate as well. Yet not everyone is on board with this social media pride. We had already discussed New Hampshire's law against so-called ballot selfies, in which people post their completed voting ballots to social media. That law was struck down as unconstitutional, because of its restriction on the most important form of speech, political speech.

But, as you may know, New Hampshire isn't the only state to pass such a law -- in fact lots of states have them, including New York. As in other states, New York's is being challenged in federal court at present. Three voters sued in October to get enforcement of the law blocked. The judge in the case, however, has refused to issue such an order, claiming that to do so would sow confusion on election day.

U.S. District Judge Kevin Castel in Manhattan said it would "wreak havoc on election-day logistics" to issue a preliminary injunction against the law, which prohibits the display of "ballot selfies." "The public's interest in orderly elections outweighs the plaintiffs' interest in taking and posting ballot selfies," though they remained free to express their political message through "other powerful means," Castel wrote.

It's an odd bit of reasoning. What Castel is saying is that ordering non-enforcement of this law -- doing nothing, in other words -- would create more havoc than actually tasking law enforcement with enforcing it. How is that remotely possible? Doing nothing cannot possibly create more problems than doing something. Doing nothing is doing nothing, after all. What havoc could come from local law enforcement sitting idly by as people proudly share that they voted on social media?

When one takes into account that this is a matter of free political speech, so too does Castel's suggestion that the public benefit outweigh's those of the plaintiff's seem odd. The public is the one that would benefit from not enforcing a law that has had a similar version of it already declared unconstitutional in another state. Other states have had the courts all over the map on this question, with California also seeing a refusal to stop enforcement of its ballot selfie law, while states like Indiana and New Hampshire have had those laws struck down.

It seems this may be headed for the Supreme Court, where we'll hopefully have a full roster of justices ready to make a ruling on selfies at the ballot box.

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Filed Under: ballot selfies, election, first amendment, free speech, new york

49 Comments

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Anonymous Anonymous Coward (profile), 4 Nov 2016 @ 12:41pm

Blinders firmly in-place along with rose colored galsses
Illegal laws are illegal, whether they are disqualified before or after the election. The judges excuse smacks of something, though I cannot tell what he thinks he or his co-ideologists might win.

The only excuse I have heard about ballot selfies that makes any sense is that they might be used to collect payment for having voted a certain way. There were ways to do that prior to selfies, so why the stall? Can he really not tell a bald faced 1rst Amendment violation on first read? He should turn in both his judge membership card, and his decoder ring.
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Anonymous Coward, 4 Nov 2016 @ 1:19pm

Re: Blinders firmly in-place along with rose colored galsses
Because EVERYONE will slaughter the Constitution at the Altar of their desires, or the for the greater benefit of society, or for National Security, take your pick.

I yet to find more than literally a handful of people that actually support the constitution.

99% of Americans support ignoring it when it suits their desires.
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I Love Capitalism, 4 Nov 2016 @ 1:43pm

More Government Meddling
This is just another example of the government meddling in the free market. If I'm going to sell my vote, the buyers are gong to want some sort of confirmation of how I voted and a photo is the easiest way. Prohibiting such photos violates both my property and free speech rights!
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Rob Henderson, 4 Nov 2016 @ 1:44pm

Poll Worker Training
Imagine if you will how many of the poll workers have already been trained throughout the sate of NY. I would cautiously estimate there are more than 10000 of them. Every one of them has been trained to not allow selfies in the polling place.
Issue an injunction today, not all of those workers will hear or understand the message. Then you have a situation on Tuesday where some workers are allowing selfies and others are not. That is the confusion the judge is talking about.
Writing an injunction takes the stroke of a pen; causing it to be equally enforced takes careful planning and a lot of work.
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Deniable Sources, 4 Nov 2016 @ 1:47pm

Just run-of-the-mill kicking of the can
The judge has no discernible argument with the constitution. This is not a constitutional issue for this judge. It's an issue of disturbance of judicial naps. With this non-result, the status quo is preserved and nobody cares. Hands washed, back to sleep.

By the time there's an appeal, the question will be moot for 2016. If someone actually gets arrested for it in the meantime, they can be the plaintiff and own the problem on a different lawsuit and the judge gets to dodge entirely.

It's a legal system, not a justice system.
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ECA (profile), 4 Nov 2016 @ 2:00pm

cAN i ASK??
Has any State or election EVER given yuo a copy of your VOTE???
For your Proof, and for later examination and comparison??

Its interesting that there is NO validation process to PROVE to a Civilian...THAT the vote went this way or That..
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Anonymous Coward, 4 Nov 2016 @ 2:10pm

lol it would cause caos because not everyone who works at the polling station will have heard about this ruling then your going to get arguments at the stations where some people are saying its allowed and others saying its not allowed.

This conclusion is common sense really.
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Padpaw (profile), 4 Nov 2016 @ 2:49pm

Re: Re: Blinders firmly in-place along with rose colored galsses
More foreigners probably respect and aspire to have the American constitutional rights than anyone else.

You might have better luck asking immigrants about it and finding support for it there
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anon, 4 Nov 2016 @ 3:57pm

Re: cAN i ASK??
That is by design. And even in states where a receipt is required for electronic voting machines... they have processes in place to completely ignore the receipts.

Here is Chicago where on audit the vote totals were proven to be wrong. The vote was literally flipped from one candidate to the other. The paper receipts that the voter can see and verify said that Bernie Sanders won the primary but the ballots counted said that Hillary had won. Rather than viewing that as a problem they moved past it as quickly as possible and ratified the Hillary Win result.

https://www.youtube.com/watch?v=OSNTauWPkTc&t=1m01s
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Capt ICE Enforcer, 4 Nov 2016 @ 4:12pm

Perfect example
Here is a perfect example. President Obama has caused a lot of havoc and yet has done nothing. Bring troops home from Iraq and Afghanistan. Nope. Close Cuba, Nope. Follow climate change treaty, nope. Demand resignations for those who lie and torture people. Nope. Increase the debt, yup...
See what I mean.
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Anonymous Coward, 4 Nov 2016 @ 4:24pm

Re: Just run-of-the-mill kicking of the can
Actually, ruling makes sense. Remember, that this case was not closed at all. This is just about injunction just days before this election. Case continues.

And as to nightmare, sure is.
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Aaron Walkhouse (profile), 4 Nov 2016 @ 6:04pm

Since buying a vote is definitely illegal…
…and tangible proof of a bought vote would serve to expose,
prosecute and convict the buyer of votes, it would be most
interesting to see who is promoting these anti-selfie laws. ‌ ;]

Also, nothing in those laws forbid simply taking a photo of
your own ballot without your face in the shot; so you can
still keep proof (but don't forget to disable the flash). ‌ ;]
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JoeCool (profile), 4 Nov 2016 @ 6:17pm

Something smells fishy here
Think about it a moment - the only way you can enforce a ban on ballot selfies is to have police INSIDE the voting booth to make sure you don't take the picture. This is about keeping police inside voting booths in an effort to discourage certain categories of voters.
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Anonymous Coward, 4 Nov 2016 @ 7:09pm

Re: Something smells fishy here
There will be no police im the voting booth, you dumb fuck.
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HIllary 2016!, 4 Nov 2016 @ 7:20pm

Ballot Selfies Show Who is on the Right Side
Anyone who votes the right way will be proud to post it; anyone who doesn't post it must be covering it up.

My friends and I are going around the office the morning of the election. Anyone who hasn't posted their selfie showing that they voted the right way obviously voted the wrong way deserves retribution. Nothing directly is going to happen, but it might be interesting to note the correlation between our list and who gets their expense reports audited. Or maybe get anonymously accused of sexual harassment.
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Anonymous Coward, 4 Nov 2016 @ 8:46pm

Re: Ballot Selfies Show Who is on the Right Side
You're either with us, or against us. And if you're with us, you better be able to prove it.
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Hugo S Cunningham (profile), 4 Nov 2016 @ 9:49pm

Secret ballots are for counterrevolutionary scum
Under the Stalin constitution (free-est in the World), polling stations had booths where malcontents could cross out the Party slate on the ballot. Normal workers and peasants, however, were proud to show their ballots as an affirmation of community solidarity.
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JoeDetroit (profile), 5 Nov 2016 @ 2:59am

Encouraging people to vote?!
This is why the law exists: you can't be out there encouraging people to vote!
Be sure to keep two eyes on those organizations that are out there trying to register folks. Be sure to purge the registration rolls a couple months before the election of possible felons & dead people. The name is the same or close enough, purge them!
Make sure that people in certain precincts wait hours to vote because it's not our fault too many people showed up to vote.
Oh & they GOTTA HAVE I.D. because there might be busloads of people moving from place to place to vote multiple times (but not one of them will rat them out). Never mind that replacing lost/stolen I.D. can be next to impossible now days without money & transportation.

Voter suppression is live & happening. They are doubling down on the Florida 2000 model.
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Anonymous Coward, 5 Nov 2016 @ 3:46am

"This is a good thing for democracy, in my opinion, as celebrations of participation can only encourage others to participate as well. Yet not everyone is on board with this social media pride."

And rightfully so, considering the fact that the popular vote and the electoral vote can go (and has gone in the past) in two entirely different directions, and yet the electoral vote will stand. Basically, that means 538 people determine the outcome - not you or anything you do. You and your votes do not in any way shape their votes even though their votes are "supposed" to mirror yours. So while the default American Idiot continues to deceive themselves and those around them that what they do actually matters, candidates like Shillary are busy either blackmailing or paying off a very small group of people who should have never been given power in the first place. The ONLY thing you can do that would actually matter is to 1) educate those who don't know about this about it (you would be surprised how many people don't know such a basic fact), and 2) see to it that the electoral collage is done away with at any cost.

BTW, it doesn't matter if a "faithless elector" is punished by law if the damage they cause with a faithless vote continues to stand (as it currently does).
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Anonymous Coward, 5 Nov 2016 @ 10:16am

What havoc could come from local law enforcement sitting idly by as people proudly share that they voted on social media?

You seem to be willfully ignoring the distinction between someone proclaiming that they they voted and trying to prove who they voted for.
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Thad, 5 Nov 2016 @ 10:16am

Re: More Government Meddling

If I'm going to sell my vote, the buyers are gong to want some sort of confirmation of how I voted and a photo is the easiest way.

Except it's not confirmation of jack shit, because you can fill out your ballot, take a photo of it, and then tell the poll workers that you filled it out incorrectly and need a new one. That ballot will be discarded and you can get a new one and vote however you want.

The idea that ballot photos are being used as proof in some kind of blackmail/bribery vote-rigging scheme is asinine. There is zero evidence that this is happening, and if anybody tried to do it it would be trivial to circumvent.

Ballot photos aren't election tampering, they're self-expression.

You're free to tell people who you voted for. You're free to show people who you voted for. You're also free to keep it confidential.
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Thad, 5 Nov 2016 @ 10:19am

Re: Ballot Selfies Show Who is on the Right Side
Smells like troll.
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Thad, 5 Nov 2016 @ 10:23am

Re:

Basically, that means 538 people determine the outcome - not you or anything you do. You and your votes do not in any way shape their votes

It...doesn't sound like you understand how the electoral college works. They can't just vote however they want; they have to vote the way the majority of voters in their state did. (Or district, in the case of Nebraska and Maine. And DC, of course.)

I support abolishing the electoral college and going with the popular vote, or at the very least making it proportional instead of all-or-nothing (going to point to Nebraska and Maine again here). But you can't effectively advocate for something without understanding it. Do some research.

Shillary

Also, if you're over the age of twelve and not a writer for Mad Magazine, referring to politicians by cutesy parody names makes you look like a giant baby.
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Anonymous, 5 Nov 2016 @ 10:27am

Re: Re: More Government Meddling
Great - now you've let the cat out of the bag and all those people who were getting paid TWICE for their vote (once by each side) will lose half their income.

Nice job.
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Thad, 5 Nov 2016 @ 10:27am

Re:
Because the distinction is meaningless.

Ballot photos are useless as definitive proof of how a person voted (because, as I noted elsewhere, it's trivially easy to take the photo and go tell the poll worker that your ballot is spoiled and you need to throw it out and get a new one). In all practical terms, they're exactly the same as saying who you voted for.

A ban on ballot photos is pointless. It suppresses free speech, and the justification for it is to prevent electoral tampering that (1) is not happening and (2) could not actually happen. Even if balancing tests were a justifiable way of limiting free speech (they're not), there's no justification here; it's a solution to a problem that doesn't actually exist.
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R.H. (profile), 5 Nov 2016 @ 12:49pm

Re: Re:
That's what the AC is saying, though, the electors aren't required to cast their ballots the way their states (or districts) voted. Most (if not all) states have laws that say that they will be punished if they don't but, that punishment happens after the fact.

For example, here is a link to an article about a Democratic elector who doesn't want to vote for Clinton, and another who is considering abstaining, even if she wins Washington State. Since the electors were chosen at the convention along with the candidate, there would have to be another election (before mid-December when the electors vote) to pick new ones to get rid of unfaithful electors. Our system is very broken.
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Anonymous Coward, 5 Nov 2016 @ 2:36pm

Re: Re: More Government Meddling
> Except it's not confirmation of jack shit, because you can fill out your ballot, take a photo of it, and then tell the poll workers that you filled it out incorrectly and need a new one.

Guess you've never heard of a selfie video, huh?

> That ballot will be discarded and you can get a new one and vote however you want.

Not after you've videoed yourself depositing it.

> There is zero evidence that this is happening,

Then let's keep it that way, shall we?
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Anonymous Coward, 5 Nov 2016 @ 4:13pm

Re: Re:
"Also, if you're over the age of twelve and not a writer for Mad Magazine, referring to politicians by cutesy parody names makes you look like a giant baby."

Awww, widdle Thaddy is upset.

Shillary Shillary Shillary ...
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Wyrm (profile), 5 Nov 2016 @ 6:21pm

Re: Re: Re: More Government Meddling
Then again, both you and the previous commenter forgot the other side of the problem. People can still take selfies, then email them to whoever bought their votes. No need to bring public attention to it with social media.
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Thad, 5 Nov 2016 @ 6:28pm

Re: Re: Re: Re: More Government Meddling
Excellent point.
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Thad, 5 Nov 2016 @ 6:32pm

Re: Re: Re:
I...don't know why you think proving my point is some sort of brilliant victory, but hey, if it makes you happy, then good for you.
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Thad, 5 Nov 2016 @ 6:35pm

Re: Re: Re:
Yes, and from the article you just linked:

The electors meet Dec. 19 at state capitols to cast the Electoral College ballots. There is no constitutional requirement they follow their states’ popular votes, but so-called “faithless electors” are a rarity and have never decided an election.

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Thad, 5 Nov 2016 @ 6:39pm

Re: Re: Re: More Government Meddling

Not after you've videoed yourself depositing it.

Which is, perhaps, a good argument for banning videos of people depositing their ballots. So good job, you made a fair point in a completely different debate from the one we're actually having.
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Anonymous Coward, 5 Nov 2016 @ 9:00pm

Re: Re: Re: Re: More Government Meddling

you made a fair point in a completely different debate from the one we're actually having.

I'm not sure which debate you're referring to. The article was about "selfies", which includes self-taken videos of one's own self.
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Thad, 5 Nov 2016 @ 11:10pm

Re: Re: Re: Re: Re: More Government Meddling
The article is about a law that bans people from taking photographs of their ballots. You are saying that this is reasonable. Your justification for it being reasonable is that people could take videos. (You have produced no evidence that this has ever happened.)

So, let me spell it out for you:

"Someone could take a video of themselves filling out and then submitting a ballot" is a stupid-ass justification for banning anything but people taking a video of themselves filling out and then submitting a ballot.

We are currently talking about a law that bans things other than people taking videos of themselves filling out and then submitting ballots.
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Anonymous Coward, 6 Nov 2016 @ 3:41am

Re: Re: Re: Re:
If the phenomenon never decided an election, it's because it was a rarity heretofore. To imply that cannot occur henceforth is an absolute absurdity. It should be abolished for that reason alone.
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Anonymous Coward, 6 Nov 2016 @ 3:50am

Re: Re:
"They can't just vote however they want; they have to vote the way the majority of voters in their state did..."

That is the common belief, but that is not the reality. The "penalty" is not severe enough to matter. Furthermore, said penalties do not undo faithless votes. The damage stands.
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Anonymous Coward, 6 Nov 2016 @ 7:23am

Re: Re: Re: Re: Re: Re: More Government Meddling
The article just says selfies. So you're saying the law only bans still pictures but allows motion pictures? I haven't read the actual law but assume that you have if you're making that claim. Still, it certainly seems strange for the law to be written like that, especially considering that motion pictures are just a series of still pictures.
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The Wanderer (profile), 6 Nov 2016 @ 8:05am

Re: Re: Re: Re: Re: More Government Meddling
This is the first time I've seen anyone claim that "selfie" is used to refer to anything other than "a photograph of one's self, taken with the camera built into a smartphone or similar portable computing device".

Any citations for the idea that it is also, in at least some cases, understood to include things that are not photographs?
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The Wanderer (profile), 6 Nov 2016 @ 8:08am

Re: Re: Re: Re: Re: Re: Re: More Government Meddling
He might also be saying that the law forbids both, and that forbidding motion pictures might be reasonable (for reasons including the one you gave), forbidding still pictures is not.

I.e., an argument defending a law which is narrower than the law we're actually talking about is not an argument which defends the law we're actually talking about.
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Anonymous Coward, 6 Nov 2016 @ 9:06am

Re: Re: Re: Re: Re: Re: More Government Meddling
Among me an my friends selfie certainly includes video, the only difference being which mode the camera is in.
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Anonymous Coward, 6 Nov 2016 @ 9:10am

Re: Re: Re: Re: Re: Re: Re: Re: More Government Meddling
Okay then, at what rate does a series of still pictures become a motion picture and no longer a series of still pictures?
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Thad, 6 Nov 2016 @ 9:13am

Re: Re: Re: Re: Re:
Never said that it can't, but I consider it very unlikely, and nothing you've said is very good evidence to the contrary.

I've already given my opinions on the electoral college; it needs reform or abolition, but there are much better reasons than the (very) occasional rogue elector.
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Thad, 6 Nov 2016 @ 9:15am

Re: Re: Re:

The "penalty" is not severe enough to matter.

And yet it's mattered enough that faithless votes have never swung a single election.

Furthermore, said penalties do not undo faithless votes. The damage stands.

What damage?
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The Wanderer (profile), 6 Nov 2016 @ 9:20am

Re: Re: Re: Re:
The damage of the election having been swung, if that happens. Which it hasn't yet, but "past performance is no indicator of future results"; just because we've been lucky thus far doesn't mean we should rely on continuing to be so.
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Eldakka (profile), 6 Nov 2016 @ 6:39pm

Re: Blinders firmly in-place along with rose colored galsses

Illegal laws are illegal

This law hasn't yet been declared illegal in NY. This was for a preliminary (i.e. before the case has been heard) injunction.
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Chris Brand, 7 Nov 2016 @ 11:21am

Re: Perfect example
If a judge were to decide that the police should not enforce laws against theft, for example, it seems reasonable to anticipate "chaos" as a result, so I'd say that the logic here is definitely faulty, regardless of your views on this particular law.
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Anonymous Coward, 8 Nov 2016 @ 7:45am

Re: Re: More Government Meddling

Except it's not confirmation of jack shit, because you can fill out your ballot, take a photo of it, and then tell the poll workers that you filled it out incorrectly and need a new one. That ballot will be discarded and you can get a new one and vote however you want.

Isn't there a record made of these discarded ballots?
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Anonymous Coward, 12 Nov 2016 @ 11:48am

Re: Re: Re: Re: Re: Re:
How now, brown cow?
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