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Judge hears lawsuit challenging Indiana ballot photos law

October 15, 2015

A federal judge seemed critical of a new Indiana law that prohibits voters from taking photos of their election ballots and sharing the images on social media during a hearing on a lawsuit challenging the law.

The American Civil Liberties Union of Indiana sued the state in August over Indiana's so-called "ballot selfies law," contending that it violates voters' First Amendment rights.

The group wants U.S. District Judge Sarah Evans Barker to issue an order preventing state officials from enforcing the law during the Nov. 3 municipal elections, and until the lawsuit is settled.

Barker asked the state's attorney during the hearing Tuesday to explain why voters should be punished for taking harmless photographs of their ballot, The Indianapolis Star reported.

Indiana deputy attorney general, Dennis Mullen, replied that the law's intent is to maintain the integrity of the ballot by removing a tool that could be used to commit voter fraud.

He described a situation in which a voter is coerced by either an organization or peers to vote a certain way and to provide proof, such as a photo.

Barker said a problem with the law is that it justifies impinging on free speech rights by relying on "a whole lot of hypotheticals." She also said there isn't any empirical data showing voter fraud is an ongoing problem in Indiana.

"Your position wobbles, counsel, on the existence of a problem," Barker told Mullen during the hearing.

He replied that the lack of empirical data doesn't mean a problem doesn't exist, and said the law is a proactive approach to preventing voter fraud.

The law authored by Republican Sen. Pete Miller of Brownsburg makes it a potential felony to take photos of a marked ballot and share those images on social media.

Barker questioned why the law considers taking ballot selfies a felony, saying it seems "impractical in this day and age when a picture is taken of everything."

Ken Falk, legal director for the ACLU of Indiana, said the law is written too broadly because it would punish voters who simply took a picture with their ballots and had no intention of committing voter fraud.

He said people want to memorialize proof that they've voted for numerous reasons. Falk said the Legislature could have simply enacted a law that bans cellphones in voting booths, and added that there already are laws prohibiting the buying of votes.

"The question is, 'What does this add to that?'" he said.

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