Barker rules ballot photo ban unconstitutional

January 24, 2017

An Indiana law prohibiting voters from taking photos of their ballots for personal use is an unconstitutional violation of First Amendment rights, a district court judge has decided.

After issuing a preliminary injunction barring the enforcement of Indiana Code 3-11-8-17.5 – which holds that voters may not take personal photos of their ballots while in a polling place and share them on social media – in October 2015, Judge Sarah Evans Barker in the U.S. District Court for the Southern District of Indiana granted the ACLU of Indiana’s motion for summary judgment requesting a permanent injunction on Jan. 19.

The ACLU first challenged the statute in August 2015, arguing that it was an unconstitutional infringement upon free speech rights. In her decision in American Civil Liberties Union of Indiana v. Indiana Secretary of State et al., 1:15-cv-01356, Barker agreed, writing that the statute  was a “solution looking for a problem” that the state has not proven exists. https://ecf.insd.uscourts.gov/cgi-bin/show_public_doc?12015cv1356-46

In arguing its cross-motion for summary judgment, the state first told Barker that the statute was content-neutral, not content-based, and thus was only subject to intermediate scrutiny “because all photography and posting to social media is banned regardless of the content of the photo.”

But Barker rejected that argument, writing that the statute only prohibits digital photos of voters’ ballots, not lines of voters or “voting selfies” that do not include shots of the ballots in the photos. Thus, the state would have to examine each photo taken at various polling places to determine whether voters complied with the statute.

“Indeed, it is this required post hoc examination of the photographs needed in order to enforce the terms of this statute which reveals its content-based nature,” Barker wrote. 

Because the statute is content-based, the state was then tasked with proving that it could pass the strict scrutiny test, a burden that was not met, Barker wrote.

Although the state presented three interests that Barker conceded were compelling – preventing vote buying and selling, maintaining the secrecy of voters’ ballots and maintaining the integrity of the electoral process – the judge further noted that there was not an actual problem in need of solving.

The state asserted throughout its arguments that Indiana “suffers from ‘specific voter issues’ due to its ‘history of vote buying and selling,’” but Barker wrote that in the seven months between the issue of the preliminary injunction and its cross motion for summary judgment, the state failed to come up with evidence “that is in any way persuasive.”

Despite citing to evidence of three previous instances of vote buying incidents in the last 40 years, the state failed to prove that vote-buying is widespread, the judge wrote.

“Simply put, the State has failed to establish that Indiana suffers from any substantial ongoing vote-buying problem(s) in need of the statutory protections imposed by this statute, much less any problem(s) emanating from or pertaining to the use of digital photography in facilitation vote buying.”

Aside from failing to prove that a compelling government interest exists, Barker wrote that the state also did not meet its burden of showing that it used the least restrictive means possible to further that interest.

Although the defendants argued that the statute was designed to prevent against potential vote buyers, it also limits the free speech of “large numbers of voters seeking to make a political point or to express pride in their voting record by recording the moment or simply to capture the moment for some legally innocuous reason.”

Further, even if the statute was only subject to intermediate scrutiny, Barker wrote that it would still fail to pass muster because “it is clear that Indiana Code 3-11-8-17.5 fails to provide a solution to a real and substantive problem confronting the state.”

“At best, it provides an indiscriminate, blunt instrument to remedy a so-far undetected problem,” the district judge wrote.

Corey Elliott, spokesman for the Attorney General’s office, which represented the state against the ACLU’s claims, said the office would be reviewing the ruling with its state client and deciding on its next steps. Jane Henegar, executive director of the ACLU of Indiana, did not return a message seeking comment.



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