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2-Plus Years Later, Lawsuit Over Ballot Selfies Not Over

A month ahead of Michigan’s March presidential primary, there’s been a 70 percent increase in absentee ballot requests, after voters in the state passed no-reason absentee voting in 2018.
James Durkee
Flickr Creative Commons

Eager to snap and post an online photo of your Michigan ballot in the Nov. 6 election? Think again. A legal dispute over photos in polling places still hasn't reached the finish line, more than two years later.

A millennial voter from the Kalamazoo area, Joel Crookston, filed a lawsuit deep in the 2016 election season to try to stop Michigan's ban on taking photos of marked ballots or publicly exposing them. A violation can disqualify a ballot.

U.S. District Judge Janet Neff granted an injunction, clearing the way for so-called ballot selfies. But a higher court stepped in and said the sudden change just days before the Trump-Clinton election would be a "recipe for election-day confusion for voters and poll workers alike."

The litigation between Crookston and the secretary of state is unfinished while another major election approaches in a few weeks. It means voters who want to tell social media followers about their choice for Michigan governor or legalizing marijuana will need to use words — not a picture of their ballot.

"It's surprising how the wheels of justice, as they say, have turned pretty slowly," said Crookston, 34, of Portage, who believes the ban violates his rights to free speech and due process.

In 2012, Crookston took a picture of his ballot and posted it on social media after writing in a candidate for Michigan State University trustee. He wasn't challenged by officials. But attorney Stephen Klein reached out to him in 2016, warned him about Michigan's ban and asked if he would be willing to file a lawsuit.

Michigan's prohibition on displaying completed ballots has been in place since 1891, more than a century before camera-equipped pocket phones.

"Is this the most important free speech case under the sun? No. But it's a simple act that allows people to be involved in the electoral process." Klein said of a ballot selfie. "It's not a threat to democracy. It's a celebration."

In court filings, the state argues that the photo ban protects the integrity of the ballot and the polling station. The state submitted expert testimony from Boston political scientist Charles Stewart III, who predicted more disruptions if voters were allowed to pull out their phones.

Final decisions by Neff are likely in 2019. There was an eight-month gap this year between court filings and a ruling from the judge on a key procedural step in the case.

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