North Carolina candidate sues state elections board over 'ballot selfie' ban

    RALEIGH, North Carolina (WRAL) -- A North Carolina state senate candidate has filed a federal lawsuit against North Carolina’s ban on “ballot selfies.”

The lawsuit filed Thursday in federal court by the Foundation for Individual Rights and Expression, or FIRE, alleges that the ban violates the First Amendment because it interferes with political speech on the basis of its content.

Libertarian activist Susan Hogarth posted a photo of herself to the social media site X with her completed ballot March 5, 2024, with a caption blasting the state’s law against such photos.

North Carolina is one of 14 states that ban photographs of completed ballots. According to the state board of elections, the ban is a defense against vote-buying schemes because they can be used as “proof of a vote for a candidate.”

Two weeks after posting her photo, Hogarth received a letter from the state elections board, informing her that photographing her ballot is a class 1 misdemeanor under state law, and requesting that she remove the photo from social media or face the possibility of being referred to a district attorney for criminal prosecution.

A class 1 misdemeanor in North Carolina is punishable by a fine and up to 45 days of jail time for a first-time offender.

Hogarth said it wasn't the first time she's posted a ballot selfie, but the state has never responded to hers in the past. She did not take down her the post. Instead, she took the matter to court.

"The idea that you should have a secret ballot has sort of morphed into the idea that you should keep your ballot secret. And I think those are two different things," Hogarth told WRAL News.

Attorney Jeff Zeman with the Foundation for Individual Rights and Expression, or FIRE, is representing Hogarth in the lawsuit. He said political speech is a core constitutional right.

"Content-based regulations of speech are presumptively unconstitutional," Zeman told WRAL. "North Carolina statutes prohibit voters from taking and sharing pictures of voted ballots, no matter where they take them, in the ballot box or even absentee ballots at home. They do that based on the content of the pictures."

The lawsuit asks the court to overturn the five state statutes that ban such photography. It says Hogarth shares ballot selfies” as a way to express her support for Libertarian candidates and to encourage others to vote for them.

"I think it's an important expression of your political feelings to get other people enthused about your candidates," Hogarth said. "I think we need more openness in politics, not less."

Zeman said the state could simply enforce existing criminal laws against buying or selling votes without restricting the constitutional right to political speech.

To justify suppressing speech, he said, the government must "prove that [vote-buying] is actually a problem right now, that this problem actually exists. And not only that, but that this is the only way that they can take care of it."

The lawsuit also seeks to overturn the state’s overall ban on photography inside the voting enclosure without permission of the chief precinct judge. That law makes an exception for candidates. The lawsuit says the exception is inconsistent.

Zeman says they're only trying to overturn that ban for ballot selfies, not photos of others.

"We're not trying to let people take pictures of other voters, invade anybody's privacy, see anybody else's ballot," Zeman said, "just if they want to take a picture of their ballot, and they want to take a picture of themselves in the voting booth to show everybody that they've showed up, that they participated in our electoral process."

Hogarth is running for state senate District 13 in Wake County, but told WRAL the lawsuit isn't connected to her candidacy.

A spokesman for the state board of elections said the board does not comment on pending litigation.