On the eve of Election Day, even the most apolitical people have probably seen their social media feeds taken over by voter-turnout enthusiasm. And there’s good reason to think that this particular use of social media serves a valuable purpose: Research indicates that a personal friend or even acquaintance encouraging someone to vote is far more effective than any urging from an ad. In one study, just seeing that your friends on Facebook voted increased your likelihood of heading to your polling station.
So it’s not surprising that so many people take to Twitter and Facebook and Snapchat and Instagram to express their support for a particular candidate or issue, or just democracy in general. But in a large number of states, taking a photo of or with your ballot as you vote is illegal.
Here’s what you need to know if you’re preparing to snap a selfie at the ballot box.
Where it’s legal: There are 23 states, plus the District of Columbia, where you’re in the clear. These states are Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Indiana, Kansas, Kentucky, Maine, Montana, Nebraska, New Hampshire, New Mexico, North Dakota, Pennsylvania, Rhode Island, Virginia, Wisconsin, and Wyoming. In Oregon and Washington, residents vote by mail, and it’s still not illegal to post photos of your mail-in ballot.
Some of these states have explicitly written into law protections for the ballot selfie (California and Colorado, for example), while many others have simply never addressed the issue. In New Hampshire, a federal appeals court found the state’s ballot selfie ban unconstitutional. In Indiana, you can post a ballot selfie because a federal judge barred the ban from going into effect. In many states, if your photo-taking is found to be disruptive to other voters, you can still be told to stop or booted from the polling station. In Pennsylvania, some polling locations can prohibit cell phones altogether.
In the remaining states, it is explicitly illegal to take ballot selfies, either because of laws specifically targeting them or through extensions of laws on voting booth photography. Alabama, Arizona, Florida, Georgia, Illinois, Iowa, Maryland, Michigan, Nevada, New Jersey, New York, North Carolina, South Carolina, South Dakota, Tennessee (where a bill is due to be signed soon protecting ballot selfies), Texas, and West Virginia don’t allow you to take photos or use your phone at all at a polling place. In Ohio, you can take the photo, but you can’t post it to social media. In Alaska, Louisiana, Massachusetts, Minnesota, Mississippi, Missouri, Oklahoma, Utah, and Vermont, you can take a photo at your polling place, but you can’t take one of your completed ballot. (There are other small ways these state standards differ. If you want to know more about your specific state, this CNN article has full details).
Why there are laws against it: For the most part, those justifying any law specifically targeting ballot selfies point to the threat of vote buying and voter coercion. Under this argument, a photo of a ballot is the only clear proof of how a person voted. If someone wanted to buy a vote, they could demand to see the receipt of their purchase, and allowing photos could incentivize or aid in carrying that out. But as Mark Joseph Stern wrote in Slate in 2016, that justification falls flat before most court challenges because there is no proven threat of widespread vote buying.
Besides, anyone intending to buy votes would choose a far easier approach than sending co-conspirators to an actual polling place. At someone’s home, a selfie ban would do little to stop someone using a mail-in ballot from sending a photo of their ballot to someone else. On top of that, the vote-buying argument fails when you consider that voters are often able to change their vote in a polling place and that posting a photo to social media would be a strangely public way to perpetrate a crime.
Why some courts have sided against the bans: While state laws banning ballot selfies were upheld in Michigan and New York, they were found to be unconstitutional by courts in New Hampshire and Indiana. For the judges in those cases, a ballot selfie—most often used to indicate a citizen’s support for a political candidate or stance—constitutes protected political speech under the First Amendment. To limit the speech, the concern would have to be both very real and very specific, and those courts did not find that the states met those requirements.
What happens if you post a ballot selfie in a state that doesn’t allow it: Given that law enforcement generally don’t scan social media looking for violators of a law that bans something actively encouraged by other states—and that has a good chance of being overturned in a higher court—you’re probably not looking at any consequences for posting that selfie to social media.
If you’re, say, Justin Timberlake, your ballot selfie might come to the attention of the state, but even then, a state’s “limited resources”—and, probably, unwillingness to fight for something so unpopular over something that does not generally constitute criminal behavior—likely means it’ll just go ignored. (In Tennessee, where Timberlake voted, he could have faced up to 30 days in jail otherwise.)
What to do if you actually are challenged by the state: In most cases, you’ll be looking at a misdemeanor charge, but in Illinois, where the law is the strictest, it is a felony to show your marked ballot to another person. You could be sentenced to one to three years in prison for your ballot selfie—but even then, state election officials have said it’s “unlikely” anyone would be prosecuted, according to NBC Chicago.
So if you’re reading this after the election, after taking and posting a photo of your ballot in a state that outlawed the practice, don’t panic. You will very likely be fine. If you are charged, the American Civil Liberties Union, which is confident in the ban’s unconstitutionality and raring to take it on in court, will likely be eager to help out your defense.