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Friday, December 18, 2020

Election Law Prohibiting "Ballot Selfies" Upheld as Constitutional

An Illinois Appellate Court recently upheld as constitutional Section 29-9 of the Illinois Election Code (prohibiting photographs of a completed ballot) against a challenge that it violated the First Amendment right to free speech. Oettle v. Guthrie, 2020 IL App (5th) 190306.

On November 6, 2018, Oettle went to her assigned polling place to cast her vote. She asked one of the election judges if she could take a "ballot selfie" with her completed ballot and was told no because this practice was against Illinois law. She did not take the photograph but did file a lawsuit against various election officials and the State Board of Elections challenging the constitutionality of the law as a violation of her First Amendment right to free speech. The trial court dismissed the case, and she appealed.

On appeal, the Appellate Court reviewed the statute that has been interpreted to prohibit the taking of photographs of completed ballots. Section 29-9 of the Election Code states as follows: 

Section 29-9. Unlawful observation of voting. Except as permitted by this Code, any person who knowingly marks his ballot or casts his vote on a voting machine or voting device so that it can be observed by another person, and any person who knowingly observes another person lawfully marking a ballot or lawfully casting his vote on a voting machine or voting device, shall be guilty of a Class 4 felony.

The Court noted that this provision has been been interpreted to make it unlawful to take a photograph of a completed ballot. The Court determined that the restriction did not limit a voter's access to a ballot or limit the voter's choice in voting. Instead, the purpose of the statute was to protect ballot security and restrict an outsider's access to viewing a voter's completed ballot, important protections for voters to ensure that voters are able to voter their conscience free from coercion, influence, or bribery in furtherance of the system of democracy. The Court also acknowledged that allowing "ballot selfies" could lead to delays and disorganization at the polls. In short, the statute was a reasonable restriction and the trial court properly dismissed the plaintiff's First Amendment challenge.


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