In 2012, Joel Crookston, a voter in Kalamazoo County, took a cell phone photograph of his ballot and posted it on social media. Although his ballot was not challenged by election officials, he learned later after speaking to a lawyer that taking the photograph was illegal. In fact, there are two statutes in Michigan relating to revealing ballot information:
- MCL 168.579 - "If an elector, after marking his or her ballot, exposes it to any person in a manner likely to reveal the name of any candidate for whom the elector voted, the board of election inspectors shall reject the ballot and the elector shall forfeit the right to vote at the primary." (Exception: this does not apply to an elector that exposes his or her ballot to a minor child accompanying the elector to the booth or voting compartment).
- MCL 168.738(2) - "If an elector shows his or her ballot or any part of the ballot to any person other than a person lawfully assisting him or her in the preparation of the ballot or a minor child accompanying that elector in the booth or voting compartment... , after the ballot has been marked, to disclose any part of the face of the ballot, the ballot shall not be deposited in the ballot box, but shall be marked "rejected for exposure", and shall be disposed of as are other rejected ballots. If an elector exposes his or her ballot, a note of the occurrence shall be entered on the poll list opposite his or her name and the elector shall not be allowed to vote at the election."
The Michigan Secretary of State, on the basis of these statutes, issued instructions to election officials that photography in the polling place was banned (except for credentialed media) and that cell phone use was restricted. Deep into the 2016 election season, Mr. Crookston filed suit against the Michigan Secretary of State in the U.S. District Court in western Michigan challenging the photography ban on his First Amendment rights. Early on, Mr. Crookston successfully obtained an injunction from the judge to permit "ballot-selfies", but the U.S. Court of Appeals set aside this injunction days before the 2016 election to avoid "confusion for voters and poll workers alike." Long after the voting results were in, the litigation continued to rage on.
After several years of discovery and both sides having filed summary disposition motions against one another, both sides reached an agreement on April 5th, 2019, regarding how MCL 168.579 and MCL 168.738(2) would be applied to polling place photographs. First, the Michigan Secretary of State agreed that these statutes would not apply to displaying a photograph of one's own marked ballot outside of the 100-foot buffer zone around a polling place. Second, the Michigan Secretary of State agreed to amend the instructinos regarding polling place photography and cell phones to allow voters to photograph their own marked ballot within a voting station or voting booth. In exchange, Mr. Crookston would dismiss his lawsuit against the state with prejudice (and the State of Michigan would pay Mr. Crookston the sum of $90,000.00 in attorney's fees).
In July 2019, the Michigan Secretary of State released amended instructions to the Election Officials' Manual (Chapter 11) regarding photography and the use of cell phones at polling locations:
- "USE OF VIDEO CAMERAS, CELL PHONES, CAMERAS, TELEVISIONS AND RECORDING EQUIPMENT IN THE POLLS: To ensure that all voters who attend the polls on Election Day have a full opportunity to express themselves and exercise their right to vote in private without undue distractions or discomfort, the following must be observed:"
- 1. "While in the voting booth only, voters may use a camera or cell phone to take a photograph of their voted ballot. Otherwise, the use of video cameras, still cameras and recording devices by voters, challengers and poll watchers is prohibited in the polls during the hours the polls are open for voting. (This includes the video camera, still camera and recording features built into many cell phones and other electronic devices.) Voters:"
- "May take a photograph only of a ballot and only while in the voting booth."
- "Must direct their camera at the ballot and within the voting booth (voters should leave the ballot flat on the table if possible)."
- "Must not take pictures of their ballot outside the voting booth, and must not take pictures of themselves, other voters, other voters' ballots, or anything else within the voting area."
- "Must not share an image of their ballot (including on social media or by other electronic means) until they are at least 100 feet away from any doorway used by voters to enter the building in which a polling place is located."
- 2. "The use of cell phones by voters who have entered a voting station to vote is prohibited except for the purpose of taking a photograph of their voted ballot as described above. Voters may be permitted to use cell phones while waiting in line at the processing table if not disruptive to the voting process. Similarly, challengers and poll watchers may use cell phones if not disruptive or intrusive. Voters may share images of their ballot on social media and by other electronic means only after they have cast their ballot and left the voting area and are at least 100 feet away from any doorway used by voters to enter the building in which a polling place is located."
- 3. "Officials responsible for setting up polling places are encouraged to set up a "selfie station" outside of the voting area where voters can take pictures of themselves and their family and friends after they have voted. These areas can be decorated with images promoting participation in elections such as "I voted," "Get out to vote, " and "Michigan votes."
- "USE OF IPAD®, LAPTOP COMPUTERS AND OTHER ELECTRONIC DEVICES: iPad®, laptop computers and other electronic devices may be used in the precinct by challengers and poll watchers to keep lists and perform other data accumulation tasks. Use of these electronic devices must not interfere with maintaining precinct order, disrupt processing or be used for campaigning within the precinct. As with cell phones, care must be taken that built in cameras are not being used to take pictures or transmit video of events in the precinct."
Voters have a wider range of discretion on Election Day to express themselves provided that this does not interfere with the privacy rights of other electors at the polling place. Any violation of these amended instructions can lead to your vote not being counted.
If you have any questions about these changes in Michigan election law, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.