For over a century, the right to cast a secret ballot has been a cornerstone of the American system of governance. In the early years of our history, instead of voting in private, the white male property owners who were eligible to vote did so by voicing their chosen candidate’s name out loud at the local courthouse. The first paper ballots arrived in the early nineteenth century, but it was not until the end of the century that secret ballots became a widespread practice.

One of the primary reasons for adopting a secret ballot was to prevent coercion, bribery, and vote-buying. If voters cast their ballots in private, they would have no proof of their vote to show someone who attempted to bribe them. Reformers attest that a secret ballot is the most reliable way to prevent this type of election fraud. Every election cycle brings questions about “secret” voters who will vote in private for a different candidate who they are unwilling to support publicly. Research shows that people may feel coerced to vote differently if they know or think their ballot will not remain private, and before the 2020 election, workers feared that their employer was trying to coerce their vote. Choosing to keep a ballot secret protects against harassment and intimidation at the polling location, workplace, and online. Voters who wish to show that they voted and reveal their choice of candidates have many options to do so. But what if someone wants to take a “ballot selfie” while voting, and share an image of their ballot online?

A ballot selfie is when a person takes a photo of themselves holding their marked ballot, and usually uploads the photo to a social media account to show friends that they voted, and for whom they voted. Federal law does not prohibit ballot selfies, and leaves most elections’ decisions up to the states. All states have laws regulating conduct at polling locations, and 44 states have constitutional provisions that guarantee secrecy in voting. Many states prohibit taking photos at the polling location in order to protect people’s privacy and limit disruptions at the polls, although those restrictions do not apply to voters photographing their mail-in or absentee ballot, and may become less applicable as people increasingly are able to vote by mail.

Most of the laws governing ballot secrecy were written long before cell phones and the internet existed, and allowing for ballot selfies may be an effective way of getting out the vote and motivating people to perform their civic duty. For many younger people, taking selfies and posting images online are how they engage with the political process. Because elections have become increasingly polarized and contentious, young voters and celebrities they follow want to show people how they voted and encourage others to vote also. Especially for young people, encouragement to vote from friends is more effective than advertisements. Additionally, as more states work to suppress the vote of Black and brown citizens, advocates worry that laws banning ballot selfies are just one more way to criminalize ordinary behavior and discount their votes. While there is no federal law, the First Amendment strongly protects against infringement of political speech, so especially with the rise of social media, states have started to rethink just how secret ballots must be.

In recent years, states from Alabama to California have passed laws that legalize taking and posting ballot selfies. Conversely, states like New Hampshire and Georgia, have passed laws outlawing them, only to see them struck down by the court or barred from being enforced. A federal judge ruled New Hampshire’s law was an unconstitutional violation of free speech, especially since the state could not prove there had been specific instances of voter bribery. The decision was upheld on appeal by the First Circuit Court of Appeals. A similar ruling was handed down by a federal judge in Indiana, and last year, plaintiffs won a preliminary injunction preventing Georgia’s ballot selfie ban from taking effect. Courts are divided, however. In 2017, a federal court upheld New York’s ban on photographing and displaying marked ballots, and in 2000, an appeals court in Illinois held the same. Regardless of constitutionality, ballot selfie bans are an archaic effort to prevent ballot fraud, and legal challenges often prevail, because there is no proof of widespread vote buying.

Today, ballot selfies are legal in 24 states. 7 additional states have laws prohibiting ballot selfies at polling locations, but not when submitting an absentee ballot. 5 states, D.C., and Puerto Rico have laws that are unclear. And 13 states prohibit all ballot selfies.

There are minor distinctions and exceptions to some of these laws also. In New Mexico, ballot selfies are legal, but a person may not show the selfie to anyone while inside the polling location. In Delaware, there is only a policy against cell phone use at the polls, but no state law prohibiting it. In Oklahoma, a person is free to take a ballot selfie, however they must wait until they are outside the polling location to post it online. And Alaska state law prohibits ballot selfies, however Anchorage recently passed a local ordinance allowing selfies of municipal ballots.

There are also states where the law is unclear and should be updated. In Louisiana, a former Secretary of State has said that ballot selfies are legal, but current state law prohibits a voter from “allow[ing] a ballot to be seen.” In Minnesota, it is legal to take a ballot selfie, but not to show it to others. Pennsylvania, similarly, prohibits a voter from allowing their ballot to be seen, but the Pennsylvania Department of State informs that selfies are legal, and counties may allow or restrict the use of cell phones at polling locations. Vermont’s Secretary of State has said that ballot selfies are legal, but state law prohibits a person from allowing their ballot to be seen “with an apparent intention of letting it be known” how they are about to vote. In Wisconsin, a representative of the State Election Commission has said it is okay to take a ballot selfie, although state law prevents a person from showing a “marked ballot to any person.”

Although Michigan still has a law on the books banning ballot selfies, a 2019 court settlement stipulated that voters may photograph their ballot in the voting booth, and share the image once they are at least 100 feet away from the polling location. And in Montana, a 1904 District Court case specifically held that Montanans may waive their right to ballot secrecy, which only further underscores a ballot selfie right in that state.

Although it would be rare for a state to actually arrest and charge a person solely for taking a ballot selfie, it is important for states to update their laws to make them clear, understood, and enforceable. They should narrowly tailor the language to apply only when a selfie is evidence of an actual crime, and investigate coercion, bribery, and other elections’ crimes without undermining protected political speech.

As the New Hampshire court stated, “The ballot-selfie prohibition is like ‘burn[ing down] the house to roast the pig.’”

Circuit Court Judge Myrna Perez, formerly the director of the Brennan Center’s voting rights and elections program, has recommended that these laws be “revisited and revamped as societal norms and concerns evolve.” State-based advocacy organizations nationwide, including the Coalition for Good Governance in Georgia, and ACLU affiliates in New Hampshire, Indiana, and California, have successfully challenged ballot selfie bans in court.

Lawyers for Good Government drafted a model policy to ensure that all voters will be able to legally take and post a ballot selfie to social media, based on current laws in Alabama, California, Colorado, Hawaii, and Oklahoma.

The model policy may be found here: L4GG.org/ModelPolicyOnBallotSelfies.