Each November, Instagram, Facebook, and Twitter are full of celebrities and friends posting pictures of their ballots at their local polling places. In this age of social media, many users share “selfies” of themselves exercising their right to vote. Inevitably, other users post comments on these pictures alleging that sharing the picture can “invalidate” the vote or is otherwise illegal. Before heading to the ballots to elect a new governor on November 7, New Jersey residents should be aware of the current state of the law.
New Jersey law prohibits the display of a ballot. N.J.S.A. § 19:34-7 states that “no person shall…show his ballot…” Sharing a picture of the ballot on social media platforms would likely violate this statute. The penalty for this offense is up to eighteen (18) months in prison and a fine of up to $10,000. While there are no reported cases of anyone being arrested for Instagramming or Tweeting their completed or marked ballot, some New Jersey State legislators have attempted to obviate this threat altogether by expressly making it legal to share a selfie from the ballot box.
On June 8, 2017, the State Assembly passed Bill A4188. The bill would amend N.J.S.A. § 19:34-7 to state that the law does not “prohibit a voter from voluntarily taking a photograph of the voter’s own voted ballot and sharing that photograph on Internet-based social media.” The bill has remained under consideration by the Senate State Government, Wagering, Tourism & Historic Preservation Committee since that time. It is unlikely that the bill will be passed by the Senate before the current Legislative Session expires on January 9, 2018. Additionally, it is unknown whether the Governor would sign the bill even if the Senate did pass it.
Voters have challenged similar laws in other States, arguing that such laws violate their First Amendment rights. The results have been mixed, with some courts overturning laws which ban ballot selfies (see, e.g., Rideout v. Gardner, 838 F.3d 65 (1st Cir. 2016), certiorari denied, 137 S.Ct. 1435 (2017); Indiana Civil Liberties Union Foundation, Inc. v. Indiana Sec. of State, 229 F. Supp. 3d 817 (S.D. Ind. 2017)) and others finding that these laws do not abridge any rights to freedom of speech (see, e.g., Silberberg v. Bd. of Elections of N.Y., ___ F. Supp. 3d ___, 2017 WL 4326539 (S.D.N.Y. 2017)). Regardless, no court in New Jersey has addressed this question and N.J.S.A. § 19:34-7 remains in effect. Accordingly, at this point it is still illegal for a voter in New Jersey to photograph and share a picture of their ballot on social media.