Thursday, November 8, 2012

Social Media and the Law: Tweeting Your Vote?

If you're starting to feel like there's no facet of life that's unaffected by social media, you're probably right. 

To that end, this year's election featured a new phenomenon: voters took pictures of their completed ballots, then posted the pictures to Facebook, Instagram, and Twitter.

ProPublica's got the story, here.


In several states (including West Virginia), taking a photo of your ballot and sharing it is illegal

The reason for such laws: historically, there was considerable fear that people would sell their votes.

Photographing a completed ballot would be one way for a vote-seller to prove to the vote-buyer that he had voted in accordance with their arrangement, so the laws were seen as a way to address the potential for fraud.


I just reviewed the Virginia election statutes, and there does not appear to be a prohibition against a voter taking a photo of his ballot. 

However, Section 24.2-604(J), after permitting members of the media to take pictures and video of the inside of polling places, states that they may not photograph individual ballots:
The officers of election shall permit representatives of the news media to visit and film or photograph inside the polling place for a reasonable and limited period of time while the polls are open. However, the media ... shall not film or photograph the voter or the ballot in such a way that divulges how any individual voter is voting.

The vote-sharing phenomenon raises some interesting First Amendment questions. 

Certainly a person can tell his friends how he voted, and wouldn't taking a picture of the ballot be a similar kind of free speech?  Or does the possibility of fraud allow for a reasonable restriction against photography at the polls?

What would Lincoln tweet?