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CASE STUDIES IN EMERGENCY ELECTION LITIGATION
Proscriptions Against Ballot Selfies
Hill v. Williams (1:16-cv-2627) and Harlos v. Morrissey
(1:16-cv-2649) (Christine M. Arguello, D. Colo.),
Silberberg v. Board of Elections (P. Kevin Castel, S.D.N. Y.
1:16-cv-8336), and ACLU of Northern California v. Padilla
(William Alsup, N.D. Cal. 3:16-cv-6287)
From eight to 15 days in advance of the 2016 general election, fed-
eral actions in three states sought relief from proscriptions on bal-
lot selfies-photographs of ballots taken by voters completing
them. These actions and previous actions in three other states pitted
freedom of expression against the secret ballot. Some district and
circuit judges favored freedom of expression; others favored the se-
cret ballot.
Subject: Polling place activities. Topics: Laches; case assignment.
A ballot selfie is a photograph, typically taken with a smart phone, of a com-
pleted ballot that may or may not include an image of the voter's self.' Is po-
litical speech or the secret ballot more important?2
Election-Eve Cases
Colorado
Three voters filed a federal complaint in the District of Colorado on October
24, 2016, about two weeks before a November 8 presidential election, against
Colorado's secretary of state and its attorney general and Denver's district
attorney, challenging a state statute making it a misdemeanor to show some-
one a ballot to reveal its contents: Speech about how one votes in an election
rests at the core of political speech protected by the First Amendment.'
With their complaint, the voters filed a motion for a preliminary injunction.
Judge Christine M. Arguello set the case for hearing on November 2.6
On October 25, a second set of three voters filed a similar federal com-
plaint in the District of Colorado against the same three defendants.6 With
1. Rideout v. Gardner, 838 F.3d 65, 67 (1st Cir. 2016).
2. Silberberg v. Bd. of Elections, 272 F. Supp. 3d 454, 459 (S.D.N.Y. 2017) (Posting a
photograph of one's marked ballot to social media is indisputably a potent form of political
speech, presumptively entitled to protection under the First Amendment. [But the] State of
New York has a compelling interest in preventing vote buying and voter coercion.); see
Alejandro Lazo, Ballot Selfie Bans Disputed, Wall St. J., Nov. 3, 2016, at A4; see also Think
Before You Shoot! Ballot Selfies May Be Illegal in Your State, www.courtroomstrategy.com/
2016/1 1/think-before-you-shoot-ballot-selfies-may-be-illegal-in-your-state/.
3. Complaint, Hill v. Williams, No. 1:16-cv-2627 (D. Colo. Oct. 24, 2016), D.E. 1; see
Second Amended Complaint, id. (Dec. 29, 2016), D.E. 47; Amended Complaint, id. (Nov. 1,
2016), D.E. 22; see also Colo. Rev. Stat. § 1-13-712 (2016).
4. Preliminary Injunction Motion, Hill, No. 1:16-cv-2627 (D. Colo. Oct. 24, 2016), D.E. 7.
5. Docket Sheet, id. (Oct. 24, 2016) [hereinafter Hill Docket Sheet] (D.E. 10, 27).
6. Complaint, Harlos v. Morrissey, No. 1:16-cv-2649 (D. Colo. Oct. 25, 2016), D.E. 1.
Federal Judicial Center 9/5/2018
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