A federal judge has ruled: Your ballot selfie is legal (for now) if it’s not connected to any other crime

U.S. District Court Judge Christine Arguello had to balance concern for preventing voter fraud with the First Amendment.

Ballot envelope selfie. (Andrew Kenney/Denverite)

This started a few weeks ago when Denver District Attorney Mitch Morrissey warned people against the popular practice of taking a “ballot selfie.” It’s illegal under Colorado law, ostensibly to prevent someone from buying your vote and you, in turn, offering them evidence that you did as promised.

A bunch of people sued, and a federal judge ruled late Friday that if there’s no indication any other crime is involved, then prosecutors can’t come after you for posting a ballot selfie or make you take down a photo from social media.

This isn’t a final ruling on the merits of the law. Rather, U.S. District Court Judge Christine Arguello issued an injunction that prevents prosecution solely for the act of posting a picture of your ballot.

Arguello had to balance concern for preventing voter fraud with concern for the First Amendment rights of people who want to share their ballot.

Morrissey and Attorney General Cynthia Coffman both said that no one had been prosecuted in relation to a ballot selfie without evidence of some other crime, and that ended up working against preserving the ballot selfie ban.

“These declarations, although made by the Defendants in an effort to defeat standing and render the case moot, are concessions that violations of § 1-13-712(1) alone (in the absence of a violation of another section of the election code such as vote-buying) pose no material public concern,” Arguello wrote in her ruling.

Here’s the injunction from the ruling:

“The Court therefore ORDERS that Defendants Mitch Morrissey, in his official capacity as District Attorney for the Second Judicial District, and Cynthia Coffman, in her official capacity as Colorado Attorney General, are enjoined from enforcing Colorado Revised Statute § 1-13-712(1) by prosecuting, referring for prosecution, and/or investigating violations thereof, or instructing any person to remove from publication any photograph or image of that person’s voted ballot, unless such violations or publication is in connection with violations of other criminal laws.”

The ruling, however, preserved the ability of county clerks to ban photography at polling places, which the Secretary of State’s Office considered an important victory.

Here’s what Deputy Secretary of State Suzanne Staiert had to say:

“We continue to believe the law serves an important interest in protecting the integrity of the election and guarding against inducements and voter intimidation. We are pleased the injunction does not apply to the secretary or the 64 county clerks currently focused on running the election. Currently, photography is banned in many voter polling and service centers. This order has no effect on those bans and voters should not expect this order to alter the process for in-person voting.”

Erica Meltzer

Author: Erica Meltzer

Erica Meltzer covers government and politics. She's worked for newspapers in Colorado, Arizona and Illinois and once won a First Amendment Award by showing up in the wrong place at the wrong time. She served in the Peace Corps in Paraguay and can swear fluently in Guarani. She gets emotional about public libraries. Contact Erica Meltzer at 303-502-2802, emeltzer@denverite.com or @meltzere.