Today, Judge Castel formally upheld New York State’s “ballot selfie ban” at the conclusion of a bench trial. The ruling comes after Judge Castel denied a preliminary injunction shortly before the November 2016 election (see our previous coverage here).
Considering whether the law violated the First Amendment, Judge Castel found that the law survived strict scrutiny because it promoted the state’s interest in preventing vote buying, voter intimidation, and other forms of voter coercion:
After New York’s adoption of the Australian ballot reforms vote buying and voter intimidation virtually disappeared. Yet they did not disappear completely—a handful of vote buying schemes have been uncovered in the last several years. A federal prosecution in this district against the perpetrators of a vote buying scheme is still ongoing. The lack of evidence of widespread vote buying and voter intimidation in contemporary New York elections does not mean that the state no longer has a compelling interest in preventing these evils. As the Supreme Court has observed, “it is difficult to isolate the exact effect of these laws on voter intimidation and election fraud. Voter intimidation and election fraud are successful precisely because they are difficult to detect.”
Judge Castel also noted that, in the alternative, the law was a permissible content-based restriction because a voting booth is a non-public forum:
Because polling sites are opened by the government only for the specific purpose of enabling voters to cast ballots and are not historically open for public debate or speech generally, and the necessary limits on speech within polling sites to ensure orderly and efficient elections, the Court concludes that they are non-public fora . . . . It is true that voters could take a photograph of themselves with their marked ballots at the polling site and then upload that photograph to social media once outside the polling site, say, in Times Square, a quintessential traditional public forum, or in the privacy of their own home. But the posting of a photograph of a marked ballot to social media requires two steps: the taking of the photograph and the electronic transmission of that photograph. Because the first step must take place in a non-public forum and the second step may take place in a non-public forum, it is appropriate to assess the impact of the statute as a restriction of speech taking place in a non-public forum.