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ACLU challenges anti-selfie law

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A picture can say a thousand words, as long as the picture is not of a marked ballot. If it is, then two of those words could be “felony charges.”

Co-authored by Ind. State Senators Pete Miller, R - Brownsburg, and Michael Young, R - Indianapolis co-authored Senate Bill 466, which included Indiana Code 3-11-8-17.5. This law makes it illegal to take a selfie of or with your ballot.

According to Miller the entire bill was over 200 pages long, and sought to update several laws governing elections.

Among the laws changed was the ban on cell phone use at polling places.

“There was a law on the books, prior to this year, [saying] you were not allowed to use a cell phone at all when you’re in a polling place, and that seems a bit overly restrictive,” Miller said.

Now voters will be able to use their phones at the polling place as long as they are not being disruptive to other voters, Miller said. The anti-selfie portion of the law came from his concern was not about people taking pictures, but what the pictures might be used for.

“It’s the potential that you could open up to intimidation or vote buying,” he said. “Either I could offer you money to vote a certain war or I could say you better vote this way or else, hey by the way to prove it, I need you to bring back the picture.”

Ken Falk, the Legal Director of the Indiana ACLU, has challenged the law as unconstitutional.

“This seems to be a clear violation of freedom of speech,” he said. “There doesn’t seem to be sufficient justification for it.”

Falk said that this is an infringement of a voter’s right to celebrate their vote, and bans them from having what could be a keepsake. Falk also said that he had trouble understanding how it would prevent vote buying or intimidation.

New Hampshire was the only other state with a ban like this. According to Reuters, that state’s selfie law was enacted in 2014. Last month, a federal court struck down the law as unconstitutional. Like in Indiana, the law in New Hampshire was an update to voting laws designed to prevent vote buying.

According to Giles Bissett of the New Hampshire ACLU, “The First Amendment does not allow the state to, as it was doing here, broadly ban innocent political speech with the hope that such a sweeping ban would address underlying criminal conduct.”

In addition to preventing vote buying and intimidation, Miller believes the law serves another function.

“It’s the sanctity of the secret ballot,” he said. “The reason that we have a secret ballot is there’s a difference between your small community organization voting on something there might be a difference between ‘if you want to vote aye, raise your hand,’ versus ‘alright, let’s take a secret ballot. Those results become different, and we do it that way for a reason.”

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