Panel rebuffs challenge to Illinois law criminalizing ballot selfies
2020 VRELDBRF 0115
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By Josh Numainville
WESTLAW TODAY Voting Rights & Elections Briefing
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December 18, 2020
(December 18, 2020) - An Illinois law making it illegal for voters to take photographs with their completed ballots does not violate the First Amendment to the U.S. Constitution, an Illinois appeals panel says.
Writing for the majority, Judge Thomas M. Welch of the Illinois Appeals Court said in a Dec. 16 opinion that the challenged law was a reasonable and viewpoint-neutral regulation of a nonpublic forum.
Trista Oettle sued election judge Eva Guthrie and William J. Cadigan, chair of the Illinois State Board of Elections, after Guthrie allegedly told her she could not take a selfie with her completed ballot under Illinois law.
The statute at issue, 10 ILCS 5/29-9, makes it a Class 4 felony to knowingly mark a ballot so another can observe it. According to the suit, the law is an unconstitutional burden on political speech that violates the First Amendment.
The state, represented by Illinois Attorney General Kwame Raoul, intervened to defend the constitutionality of the election law.
The Circuit Court of Clinton County dismissed the case and Oettle, represented by Peter J. Maag of Maag Law Firm LLC, appealed.
Election integrity concerns
Applying a de novo standard of review, Judge Welch said that government-issued election ballots are a nonpublic forum, allowing the government to enact reasonable restrictions so long as such measures do not attempt to restrict speech based on the speaker's view.
The judge said that while the statute is a content-based restriction, the regulation is viewpoint-neutral because it prohibits ballot selfies regardless of the candidates a voter selects.
Additionally, he said the statute does not limit candidate choices and is a reasonable means to safeguard privacy, prevent coercion and intimidation, and preserve election integrity.
"Absent the statute, a ballot selfie could be used to verify that a person has voted a certain way in an attempt to coerce or purchase votes," the judge said.
In a concurring opinion, Judge Judy Cates said she would have dismissed the case on ripeness grounds, but the statute was likely "an unreasonable restriction" on First Amendment rights.
"I am concerned, particularly, for the newly registered and youngest Illinois voters, whose sole purpose in taking a 'ballot selfie' is to display their enthusiasm, civic pride and patriotism," she said.