DENVER – A Denver federal judge on Wednesday told prosecutors that they have a weak case in arguing for an archaic law that prohibits sharing so-called “ballot selfies.”
Two separate lawsuits were filed challenging the 125-year-old law. The cases were heard at the same time in U.S. District Court in Colorado during an all-day hearing.
A ruling on a request to temporarily block the law in the last days of the election was expected as early as Friday. Additional testimony was planned for Thursday.
One case was filed by state Sen. Owen Hill, R-Colorado Springs. The other case was filed by Caryn Ann Harlos, spokeswoman for the Libertarian Party of Colorado.
The crux of both cases is that the law is unconstitutional, with the effect of chilling free speech.
Denver District Attorney Mitch Morrissey’s office and state officials this week submitted affidavits to the court swearing not to prosecute people for taking ballot selfies. They say no one has been prosecuted for taking a ballot selfie.
But the affidavits came after Morrissey’s office issued a news release on Oct. 20 reminding voters that ballot selfies are illegal. That news release served as the impetus for the lawsuits after people took it as a sign that they could face criminal charges.
Sharing a marked ballot is a misdemeanor crime, punishable by up to one year in jail and a $1,000 fine. The 1891 law was enacted to protect against voters being coerced into voting a certain way. Other Colorado laws, however, also protect against voter fraud and coercion.
The practice of taking a ballot selfie has become increasingly popular, in which a person takes a photo of themselves along with their marked ballot and posts the image on social media.
A federal judge in California on Tuesday denied a request for California voters to be allowed to take and share ballot selfies at the polls next Tuesday.
But Judge Christine M. Arguello told attorneys for the state of Colorado and the DA’s office that they would have a difficult time arguing the merits of Colorado’s law.
“The defendant’s unequivocal commitment that it won’t prosecute … is an indication that they agree the law is overly broad and does infringe on the First Amendment rights of the plaintiffs and that the law should not be enforced,” Arguello suggested.
The state responded, “Neither the attorney general nor the state concedes … that the (law) is unconstitutional in any way. The affidavits reflect an exercise in prosecutorial discretion.”
The judge encouraged the state and DA’s office to issue additional news releases alerting the public to the fact that the offices do not intend to prosecute anyone. An attorney for the DA’s office said he would recommend that Morrissey’s office remove its original statement.
But Arguello didn’t feel that was enough, adding, “You don’t just take down a press release. The damage has been done.”
“We have not heard a promise from any defendants that they will publicly come out and say this law is unconstitutional, that everyone should feel free to post ballot selfies,” added Adam Frank, an attorney for Harlos.
Hill said he wants to take a ballot selfie to share the “tradition” of voting. The senator said he is unmoved by assurances that prosecutors won’t file charges for such an act, pointing out that politics is “blood sport.”
“Whether or not I get prosecuted, I would still be concerned that there would be a political motive to make a headline (against me),” Hill said.
Harlos said social media is her primary medium for reaching large swaths of voters.
“I would like to post a video that shows me filling out my ballot and giving a pitch for why other people should fill out their ballot the way I did,” Harlos said.
But defenders of the law say it is a line of defense in protecting ballot secrecy.
Employer-employee relationships were offered as an example.
An employer might try to force and employee to vote for a certain candidate, and then demand that the employee share an image of their marked ballot to prove they complied.
“With the invention of the cellphone camera, ballot secrecy has been eradicated,” said Jeff Zax, an economics professor at the University of Colorado Boulder, who testified.
“This law is the last shred of protection we have for voter secrecy. It is the only thing legally that stands between us and the eradication of the secret ballot.”
Judge Arguello on multiple occasions accused attorneys for the state and DA’s office of misleading her with red herrings that pointed to side issues, thereby diverting attention away from the core issue of chilling free speech.
Michael Francisco, an attorney for Hill, underscored the First Amendment issue.
“It is absolutely in the public interest to have clarity on this,” he said. “What you’re doing (taking a ballot selfie) subjects you to a year in jail – that provides a chilling effect.”