Can I Instagram My Ballot: How Facebook and Instagram at the Polls Could Land You in Jail

People are taking to social media sites to document their voting experience. According to Lauren Goode of allthingsd.com, a search of #Vote on Instagram returned 460,000 results. Hashtag #showmeyourballot is trending on Twitter. People want to share every tiny detail of their life, and voting is just another mini-chapter worthy of tagging and sharing on Facebook and YouTube.

At issue here is the juxtaposition of technology, cultural norms, and the right to privacy and protection from voter fraud. Voting methods are archaic. They still rely heavily on pen and paper, and very few municipalities have adapted web-based voting. Even when New Jersey Governor Chris Christie authorized fax and email for voters disenfranchised by Hurricane Sandy, there were concerns about privacy and authentication.

Today’s technology and the mobile revolution allow us to do online banking, manage our investment portfolios, support long-distance education, file our taxes electronically, use our cellphone as a credit card processor, and have a web video conference in the president’s situation room. But we can’t vote online because the government refuses to adapt to the modern world.

State officials fear that a picture of a ballot could confirm a purchased or bribed vote. WRAL.com reported that several years ago, a criminal vote-buying scheme used such photos. Vote-sellers were given cell phones and told to take a picture of their completed ballots to prove they had earned their payment.

State law varies as to whether it is illegal to take a photo of your election ballot. Some states outlaw it outright. The Citizen Media Law Project has produced a guide, Documenting the Vote 2012 that covers the state-by-state rules for using photography and video in and around polling places. Propublica.org noted that “Laws against displaying your ballot are motivated by concerns about vote buying, since voters being bribed might need to prove they voted a certain way.” Florida, Georgia, Kentucky, Michigan, Nevada and Texas, “expressly prohibit the use of photographic and recording equipment inside polling places.”

In North Carolina, cell phones are banned at polling sites. One voter had his phone seized by an election official according to WRAL.com, a North Carolina news station. Brad Bell of Wake County told WRAL, “This being the 21st century and me having a notoriously short memory, I wrote my choices down on my smartphone.”

Propublica pointed out that in “Michigan and Hawaii, voters who show their ballots to other people can, in certain circumstances, have their votes thrown out.” Kypost.com explains that Kentucky law prohibits the use of video cameras or cellphones at the polls.WBUR.com, the Boston NPR wrote that  “according to Massachusetts General Law, taking a photo of your ballot and sharing it is illegal. However, many people are unaware of the law.”

Jeffrey Hermes, a First Amendment expert who wrote the Citizen Media Law Project’s guide to ballot disclosure rules  told Propublica “Virtually all of these laws are older laws that predate the current technology."