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'Misguided ballot selfie threat' riles Colorado voters

October 20, 2016 Updated: October 21, 2016 at 6:09 am
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Colorado voters, beware: Facebooking, tweeting, or Snapchatting your ballot could get you in trouble.

In a move that free speech advocates called a "misguided 'ballot selfie' threat," the Denver District Attorney's Office on Thursday reminded voters it's illegal to share photos of a completed ballot on social media.

The statute, which states showing a finished ballot "to any person in such a way as to reveal its contents" is a misdemeanor, was designed to help prevent voter fraud, the District Attorney's Office said.

But the American Civil Liberties Union of Colorado on Thursday asked District Attorney Mitchell Morrissey to retract the statement, saying the law violates voters' constitutional rights.

"Voters have a right under the First Amendment to express support for a candidate and communicate that with others, and if that's done in a way of taking a photo of oneself with the filled-out ballot - that's free speech," said Mark Silverstein, legal director for the ACLU of Colorado.

The ACLU also argued that the DA's message could discourage disabled, elderly and non-English-speaking people from voting. Under the Colorado Voter Access and Modernization Act, voters who require assistance at the polls are allowed to bring a friend or family member to help.

A similar New Hampshire law was struck down by the U.S. Court of Appeals for the 1st Circuit last month after the ACLU filed a lawsuit on behalf of several voters, one of whom received a notice from the state Attorney General's Office notifying him that he was being investigated for a ballot photo posted to his Facebook. A U.S. District Court in Indiana also ruled in favor of the ACLU when the organization filed a similar case in 2015.

Rep. Paul Rosenthal, D-Denver, has introduced two bills - one in 2015 and one during the most recent legislative session - that would change Colorado's law to allow voters to post photos of their ballots online, but neither proposal made it out of the first committee hearing.

Not only are the laws a violation of the U.S. Constitution, but they also violate a special provision of the state's Bill of Rights that specifies citizens are free to "write or publish whatever he (or she) will on any subject," Rosenthal said.

The law originated during the Progressive Era, a movement that began in the 1890s to eliminate corruption in government, he added.

"The whole rationale for this law is removed. It's no longer relevant," he said.

At least seven other states have laws that explicitly allow "ballot selfies," according to the ACLU. But roughly 30 states have nondisclosure laws that prohibit voters from showing completed ballots to others, said University of Colorado Boulder journalism professor Paul Voakes, who specializes in digital media law.

"As always, these First Amendment questions are a matter of interpretation," Voakes said. "The digital revolution has happened at such a fast pace that it takes communication law a while to catch up with our communication technology, and this is a perfect example of that."

Under California law, interfering with "the secrecy of voting" is punishable by a fine of up to $50,000 or six months to three years in prison. But Gov. Jerry Brown signed a bill last month that would allow a voter to "voluntarily disclose how he or she voted" beginning in 2017.

California Assemblyman Marc Levine, who sponsored the bill, said ballot selfies encourage civic pride, especially among young people.

"The most important thing they can do right now is to raise awareness about the election," Levine said. "Social media is one way to do that, and when people see their friends sharing in the act of voting, it encourages others to participate as well."

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