Posting a picture of one's completed ballot on social media sites such as Snapchat, Instagram, Twitter, and Facebook has become a popular activity on Election Day in recent years. However, many voters who have pondered doing so have been warned away by claims that taking a photograph of a ballot and posting that picture online is illegal and/or will potentially invalidate the poster's vote, which has prompted a number of inquiries from our readers about whether this is so.
The answers to questions about whether it is illegal to photograph a ballot and post the results on the Internet, and what the penalties are for doing so, are "It depends." Regulations regarding voting procedure in the U.S. are set at a state level (or lower), so laws in this area vary quite a bit from place to place. In most states, however, it is the case that voters who upload photographs of their ballots to the Internet could indeed be risking criminal penalties:
"It's a very unusual case," says Jeffrey Hermes, the deputy director of the Media Law Resource Center in New York. "Usually banning political speech would be a violation of the First Amendment. But with photography at polling places, there's an intersection of two fundamental aspects of democracy: freedom of speech and the integrity of the voting process."
Hermes breaks it down this way: Suppose you were a nefarious character who wanted to skew the voting process in some way. You could buy votes, but you'd want proof that people actually voted like you told them to. You could mislead people who don't understand the voting process or don't speak English well. You could intimidate other voters into voting like you do.
In these cases, photos from inside the voting booth would really help you, the nefarious character, perpetrate election fraud. And so, many states have just banned those photos categorically. In this narrow circumstance, they've indicated, there's something more essential to democracy than free speech.
Rather than taking the chance that you live in a state where there are no penalties for posting ballot selfies, you might want to err on the side of caution and just not do it. Voters concerned about running afoul of laws regarding photography and videography in and around polling place on Election Day can refer to the Citizen Media Law Project's "Documenting the Vote" pages, which provide some (slightly outdated) "Guidelines for Avoiding Legal Trouble" on Election Day, including a chart that lists, for each state, all the laws regarding making recordings inside of polling places and photographing ballots. A slightly more updated version of this information is available here.