Federal Appeals Court Says Michigan "Ballot Selfie" Ban Will Stay In Effect For Now

A lower court had stopped enforcement of the law earlier this week.

A federal appeals court on Friday evening ordered that Michigan's "ballot selfie" ban remain in effect for the upcoming election.

The complaint "raise[s] interesting First Amendment issues," Judge Jeffrey Sutton wrote for a split three-judge panel of the 6th Circuit Court of Appeals. Noting that "[t]iming is everything," however, the court concluded that the person challenging the ban will "have an opportunity to litigate th[ose issues] in full—after this election."

The law in question bans Michigan voters from showing their completed election ballot to anyone other than someone assisting a voter or a child accompanying the voter. The ballot of a person who violates the law "shall be marked 'rejected for exposure.'"

Earlier this week, a federal district court judge halted enforcement of the ban in the upcoming election in response to a First Amendment challenge brought by Joel Crookston.

On Friday, however, the 6th Circuit issued a stay of that injunction. The "first and most essential" reason for granting the stay, Sutton wrote, is that "Crookston offers no reasonable explanation for waiting so long to file this action."

"Michigan’s ban on ballot exposure dates to 1891, and today’s version of these laws has been on the books since 1996," the court noted. "Crookston’s belated challenge to Michigan’s election procedures prejudices the State’s interest in holding orderly elections."

In addition to that, however, the court also questions the merits of Crookston's First Amendment challenge — a view that could set up a conflict with a recent ruling from the 1st Circuit Court of Appeals striking down New Hampshire's similar ban.

"[W]e are skeptical as well of the district court’s assessment of Crookston’s odds of success on the merits," Sutton's ruling for the 6th Circuit states. "The Secretary’s ban on photography at the polls seems to be a content- neutral regulation that reasonably protects voters’ privacy—and honors a long tradition of protecting the secret ballot."

Judge Guy Cole dissented from the panel's decision, writing of the effect of the court's decision, "As millions of Americans across the country prepare to vote, their counterparts in the state of Michigan will be put in the position of choosing between their freedom of expression and their right to vote."

Judge Ralph Guy joined Sutton's opinion for the court, but wrote separately to explore some of the ~larger~ questions of the "ballot selfie" ban debate. Among the multitude of issues he raised:

  • "[H]ow much delay does taking a selfie cause?" ("If all a person wants is a picture of the ballot that can be done by securing a sample ballot and taking a picture of it. But that is not a selfie for the obvious reason that there is no 'self.'")
  • "[H]ow many might avail themselves of the opportunity to take a selfie[?]" ("I don’t really know. But I do know that the number of persons who feel compelled to record their every waking moment and broadly share it with others is immense.")
  • How many pictures would one take? ("[W]ith digital photography, if you don’t like the way you look in the first one, you take another and so on ad infinitum.")
  • "Does the allowance of taking a selfie also include use of the ubiquitous selfie stick?"

Guy concluded that the fact that the state didn't have sufficient time to raise these questions are "one of the main reasons why I join the opinion granting a stay."

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