California voters have some big questions to ponder this election: Is it moral for the state to execute people? Will legalizing marijuana mean I can't walk down the street without encountering a haze of skunky smoke? Donald Trump doesn't really have a chance of winning the presidency, does he? DOES he?! What's the cost of living in Canada these days?
But there's one question they needn't ponder: Can I take a ballot selfie and post it to Instagram?
The answer is, simply: no, you can't — not legally. There was a chance that voters this election might be able to post their voting pride until a federal judge on Wednesday denied a temporary injunction on a legal challenge by the ACLU to the 125-year-old state ban on showing off marked ballots. The judge worried allowing selfies would cause confusion among voters.
But what seems more confusing is that lawmakers in California have already reversed the ban. It just doesn't take effect until Jan. 1. Also a federal judge in New Hampshire last year correctly ruled that ballot selfies are protected by the 1st Amendment.
The state ban was intended to catch malfeasance at the polls, not oversharing. California's lawmakers in the late 1900s were concerned with protecting voters from coercion and intimidation. They couldn't have possibly envisioned a future in which the practice of snapping a self-portrait at some notable moment and posting it to social media was such a big thing. The idea at the time was that enforcing secrecy would make it hard to buy votes because what savvy vote-buyer would pay out without visual proof?
But it seems there are easier ways to go these days. If I wanted to buy votes — and I don't, so please don't get any ideas — I'd focus on mail ballots. Voters can request them weeks before the election and fill the ballots anywhere they like and in the company of friends, family or menacing strangers carrying big wads of cash.
Even though the judge did not grant injunction, an impulsive ballot selfie is probably not going to get you tossed in jail. No Californian has ever been prosecuted for taking a self portrait of themselves with a marked ballot. And even the state's top election official, who is named in the ACLU lawsuit, supported the change in law.
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