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That Photo Of Your Ballot You Posted On Social Media? It’s Against Mass. Law

Photo of a marked ballot from inside a polling center (Instagram)

Photo of a ballot from inside a Massachusetts polling center that was shared on Instagram

As Massachusetts voters head to voting centers, many are taking to social media to express feelings of pride or excitement for getting the chance to vote. For some, that simply means tweeting that they voted, or posting a Facebook status urging their peers to vote, too. But many are also posting photos of their marked ballots to various social media platforms.

 

According to the Secretary of State’s interpretation of the Massachusetts General Law, taking that photo and sharing it is illegal. However, many people are unaware of the law, and there’s even a trending hashtag #showmeyourballot showing photo after photo of marked ballots.  Even Boston City Councilor Tito Jackson tweeted a photo of his ballot, but has since removed the photo from Twitter. Boston Phoenix staff writer David Bernstein also tweeted a picture of his marked ballot, and shortly after received a phone call from the Office of the Secretary of Commonwealth advising him to take the photo down. Here is the tweet Bernstein sent out after the takedown advisory:

Bernstein said that, after asking around, he’s come to understand that the law stems from the state not wanting people to buy votes. “The idea being if someone was buying your vote, you’d take a picture to show that you voted for who they wanted you to vote for,” Bernstein said. “So you could see the thought behind it in that sense.”

Listen to the full conversation with Bernstein here:

The full law says:

Whoever, at a primary, caucus or election, places any distinguishing mark upon his ballot, or makes a false statement as to his ability to mark his ballot, or allows the marking of his ballot to be seen by any person for any purpose not authorized by law, or gives a false answer to or makes a false oath before a presiding officer, shall be punished by imprisonment for not more than six months or by a fine of not more than one hundred dollars.

A lot of conversation is happening around the law itself, with some noting that the law is an interpretation by the the Secretary of State’s office and should be treated as such.

Massachusetts is just one of many states that has a law about publicizing marked ballots, and Citizen Media Law Project has done a good job laying out the varying laws state by state.

While Massachusetts’ law does not explicitly state the use of cellular phones, the secretary of state has issued an Election Day Legal Summary, a document that addresses “common situations that may arise on Election Day.” The summary includes the regulation that “observers may not use cellular telephones within the polling place.” So not only is taking photos not allowed, but using cellphones isn’t allowed either.

In a phone conversation with WBUR, Secretary of State William Galvin said that, according to his office, photographing your ballot is indeed illegal, but added that pursuing offenders isn’t too high on their priority list today.

“It’s not a serious violation,” Galvin said. “There is a statute that says you shouldn’t do it and you shouldn’t. We go to great lengths to protect the privacy of voters. However, we have better things to do today than pursue those types of cases.”

A new report by Pew Research says that 22 percent of registered voters let others know who they voted for on a social network.

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  • Guest

    As I read the law, nothing about posting a photo of your ballot on a social media website is illegal.  The law states, in pertinent part:

    “Whoever . . . allows the marking of his ballot to be seen by any person for any purpose not authorized by law . . . shall be punished by imprisonment for not more than six months or by a fine of not more than one hundred dollars.” Posting a picture of your ballot on a social media website, in and of itself, is not “a purpose not authorized by the law.” 

  • Guest

    And the ballot pictured is unmarked.

  • Jac

    But then how are we supposed to find out if a candidate is cheating? We were able to do so because voter in PA tried to electronically submit his vote, but each time he tried to vote for Obama, it selected Romney — his camera/iphone potentially saved an election… or at least brought to light the reality of rigged voting… 

  • Marypierce13

    I was so annoyed at that this was being reported as illegal that I called
    the Secretary of State’s office. I spoke to one of the lawyers. They said that
    was their interpretation of the law. I asked for a cite. They cited MGL c. 56
    section 25. I pointed out that the statute does not say you can’t take
    pictures. Only you can’t take pictures for unauthorized purposes. I said,
    “How is posting to FB or twitter unauthorized.” She just said,
    “That is the office’s interpretation.” That is circular reasoning. I
    know Galvin is secretary of state. But his interpretation is not the law. Judges
    interpret the law not state officials. The law is case law and statutes.

    • Wkuandrea

      Sorry — actually meant to post this comment to YOUR argument. :)

      I’d also like to point out that in the instagram photo cited at the head
      of this article has no markings. None. No bubbles filled in.
      As a
      former elections official in the city of Boston (though it’s been a
      couple of years), I am familiar with this statute, and the only
      interpretation of photos being taken within the polling area that is
      “illegal” is that of reporters or media posting voting activities that
      are private (such as your ballot). You taking a photo of your own ballot
      is not illegal, if I remember correctly. Nor is it illegal (or does it
      void your vote) to post your ballot privately.

    • StevenHB

       Actually the law says that you can’t allow the marking of your ballot be seen for any purpose not authorized by law.  This would imply that it’s *legal* to take a picture of your ballot for your own purposes but would make it *illegal* to publish that picture.

      • Marypierce13

        This was the discussion I got into with the lawyer. I asked her how posting to FB “was not authorized by law.” I expected a cite to another statute sstating what was authorized by law. But she just cited c. 25 again. Maybe there is another statute that she didn’t know about, but she said that c 25 was the entirety of law in regards to publishing your vote. I pointed out to her that it was circular reasoning to say that it is illegal to publish photos because it is not authorized by law. But then to only cite to c 25 when asked to justify that interpretation.

        In the end, we agreed to disagree.

        • StevenHB

          It’s not authorized by law because the law doesn’t specifically permit sharing your ballot by publishing it.

          On the other hand, the statute does allow you, if you are somehow disabled, to have someone assist you in completing your ballot. This, presumably, would be a permitted sharing of the marking of your ballot.

          • Marypierce13

            The law doesn’t specifically permit “anything.” By that reasoning, it is unlawful for election officials to look at your ballot because it is not specifically mentioned in the statute.

      • Karen Kast

        Steven – how is it illegal to publish a pic of your ballot? Even by your own explanation, if I took the picture for the purpose of posting it on my twitter/FB/blog/google etc feeds, than it is okay to publish it because that is the purpose I took it for.  

        Until the laws catch up with social media, there is actually nothing keeping anyone from posting pics of their ballots and I truly wish the media would stop giving out misinformation!!!

        • StevenHB

          As I read the statute, publishing the picture is illegal because the law requires that if you publish the picture, the publishing of the picture must be specifically authorized by law (which it’s not).  I don’t read the statute to say that you are the authorizing entity for publishing a picture of your completed ballot – I read it to say that *the state* is the authorizing entity.

          There’s nothing stopping you from speeding either, except the threat of being stopped by the authorities and ticketed.  This is no different in terms of enforcement.

          All of this said, I do think that there’s a First Amendment problem with the prohibition.

  • http://twitter.com/AndBussiere Kittens&Politics

    I proudly posted my votes for Warren and Obama on Twitter earlier! Fully aware of the law and it’s complete lack of specificity regarding online documentation. Gauvin is in complete politician mode, talking about “The idea being if someone was buying your vote…” wtf? Where does the law say ANYTHING about vote buying… This is a BS case of our officals not reading their own laws. Post your ballot, document your vote, express your rights!

    • Wkuandrea

      I’d also like to point out that in the instagram photo cited at the head of this article has no markings. None. No bubbles filled in.
      As a former elections official in the city of Boston (though it’s been a couple of years), I am familiar with this statute, and the only interpretation of photos being taken within the polling area that is “illegal” is that of reporters or media posting voting activities that are private (such as your ballot). You taking a photo of your own ballot is not illegal, if I remember correctly. Nor is it illegal (or does it void your vote) to post your ballot privately.

  • MITBeta

    Seems like this violates the 1st Amendment  rights of free speech and freedom of the press.

    • StevenHB

      Is that BTP at MIT?

      This is the best argument against the statute. Certainly publishing a picture of your completed ballot is a political statement, exactly the kind of speech the founders were most inclined to protect.

      • Ispeaklegalese

        However, the purpose of the law is to prevent manipulation of voters. If no one is allowed to take a picture of their marked ballot then it is difficult to “force” another person into voting one way or another. By preventing all voters from doing posting marked ballots the restriction is content neutral.

        Because this is a “time, place, or manner” restriction rather than a “content” restriction it must only pass intermediate scrutiny. As long as it serves a significant governmental interest, is narrowly tailored, and leaves other channels of communication open then it is OK.

        Here, the governmental interest is protecting the rights of citizens to vote freely; the prohibition on taking photographs is narrowly tailored in that it prevents anyone from actually seeing who or whether a person voted, and does prevent a persons from communicating to others that they did in fact vote or who they voted for.

        The law makes perfect sense and is a good law. 

        • Ispeaklegalese

          Does NOT prevent a person*

        • StevenHB

          It’s a prior restraint on the press (if you consider Instagram “the press,” which I do). I’d like to see a challenge.

      • MITBeta

        Yup, BTP @ MIT

        • StevenHB

          Greetings from an AD (previously) at MIT

  • http://twitter.com/Jimmy_Schaefer JimmySchaefer

    This is not a hard thing to fix, just have the government classify the it as a confidential document from the day of voting to till the release date of showing who people voted for.  I personally think its a slippery slope to selling votes now that social media can respond super fast to a picture online.  Just this post alone maybe viewed 100,000 times just second after I post it. Imagine if I showed people my ballot and asked for suggestions and a company replied to me saying vote for this we will take 10 off your phone bill or paypal you some money, or a friend is influenced by my picture online and change their entire vote.. … sounds crazy but this is how bad stuff starts.

    P.S. If you have to ask if its okay to show your ballot, why are you asking?

  • NOTsamWalton

    I can get my ballot, mark it, take picture, fold it up, hand it to the election official stating that i made a mistake.  Get a fresh ballot and actualy vote differently.  I may even be able to sell the photo anyway!   

  • J__o__h__n

    Please make posting photos of people’s lunches illegal too.

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