Singer and celebrity Justin Timberlake fell into controversy last month when he returned home to Shelby County to vote in the presidential election. Timberlake took a selfie in front of a voting machine and posted it to social media. Some folks were not amused.
A ballot selfie is likely illegal in Tennessee.
A selfie is a picture taken of oneself with a camera or smartphone. A ballot selfie is a picture in front of the voting machine or (in states with paper ballots) a picture of a marked or unmarked ballot.
Under Tennessee law, voters are not allowed to take photos or video while in the polling place. Voters are allowed to use electronic devices only for informational purposes to assist during voting. It’s doubtful that a selfie would fall under this narrow exception. At least 20 states allow ballot selfies.
But banning them is misguided and probably unconstitutional.
Some argue that ballot selfies are political speech and laws restricting them violate a voter’s First Amendment rights. Lawyers around the country are challenging restrictions on this basis. In fact, there are at least three cases pending in federal courts on this issue.
(If you’re interested in the legal arguments, check out the Federalist Society’s podcast, “Ballot Selfies are free speech.” Michigan attorney Stephen R. Klein leads the discussion. You can find it online.)
Historically, photography has been banned in the polling place to prevent vote buying and voter intimidation. For example, someone pays another to go vote. They bring out a picture of their ballot to prove whom they voted for. It’s illegal.
Yet, this concern doesn’t apply in Knox County. One feature of our voting machines is that it is impossible to take a picture of a voted ballot. The ballot is not cast on the machine until there is a waving American flag on the screen. At any point before you see the flag, you can go back and change your vote. Therefore, it’s impossible to take a selfie in front of a voted ballot on a voting machine in Knox County.
Others say that photography in the polling place creates problems. It can. Yet, as we’ve seen nationally with police shootings, oftentimes smartphones are the best tool we have to record misbehavior. If an election official or voter raises concerns, video from a smartphone could be critical evidence to expose it.
Justin Timberlake told late-night host Jimmy Fallon that he took a ballot selfie to inspire people to vote. In this era dominated by social media, Timberlake probably did more to encourage young people to vote than either candidate for president.
If we’re serious about the youth vote, we shouldn’t be threatening an online celebration of their vote. Whatever you think of the so-called “selfie generation,” our laws must encourage young people to vote.
It’s time for the Legislature to change the law. Ballot selfies may be silly, but they’re political speech worth protecting.Scott Frith is a local attorney.
You can visit his website at pleadthefrith.com