Ballot selfies are legal in Virginia, attorney general says

In a formal opinion last month, Herring said it’s not against the law for Virginia voters to use a cellphone inside a polling place to take photos or video of their own ballot for publication on Instagram, Snapchat or Facebook, as long as it doesn’t interfere with other voters or disrupt the election.

Some states ban photography in polling places. Where it’s not outright illegal, many election organizers consider the use of cellphones to be taboo, given the private nature of voting and the need for an orderly process.

But as cellphones and social media become more ubiquitous, bans on ballot photos have started to loosen. Last week, a federal appeals court ruled that a New Hampshire law prohibiting voters from posting photos of completed ballots online infringed on free speech.

The rules in Virginia have been somewhat unclear. In June, the State Board of Elections approved new regulatory language that eased restrictions on electronic devices, prompting two local-level election officials to ask Herring to clarify whether the revised rules conflict with state law.

The change was pitched as a policy modernization to keep up with technological and social change, but it was opposed by several election officials worried it could cause problems on Election Day.

Goochland County Electoral Board member Robin R. Lind, who requested the opinion with Isle of Wight County Electoral Board member William A. Bell Jr., called the regulation change “utter foolishness.”

Along with voting on the presidential contest, congressional elections and local races, all Virginia voters will face two constitutional amendment questions, which Lind said likely will slow the process as voters read the text.

“To allow people to take selfies in the presidential balloting process is certainly not going to speed the process up,” Lind said in an interview.

“I can only believe that it will delay the process and may cause a good deal of consternation from people who think they’re being photographed by somebody else. That could lead to confrontations that we don’t want to have.”

In his Sept. 29 opinion, Herring said new language that explicitly allows voters to use “cameras or audio or visual recording devices” inside polling places doesn’t contradict any law, though he clarified that cellphones cannot be used to get advice or assistance from someone outside the polling place.

Herring said nothing prevents people from revealing how they voted, and a state law prohibiting voters from carrying ballots away from the polling place doesn’t “constitute a prohibition on photography of one’s own ballot.” He noted that the law already allows limited photography by media outlets.

“Where the media is permitted to photograph voters and ballots in polling places, within certain limits, to conclude that filming and photography are entirely prohibited in polling places would force an incongruous interpretation of the Code of Virginia,” Herring wrote.

Lind said Goochland will conduct the election in accordance with Herring’s opinion, but he added that he hopes the General Assembly will consider legislation to “flatly prohibit” the use of cellphones in polling places.

City and county electoral boards cannot enact policies to ban all electronic devices under the amended regulations, but local election officers will have the discretion to instruct an individual to stop using their phone if it “hinders, delays or disrupts the voting process” or is used against another voter.

Richmond registrar Kirk Showalter said she’s not worried by the policy shift, because poll workers already can ask disruptive people to leave.

“If they aren’t interrupting anybody, they aren’t interrupting anybody,” Showalter said. “I don’t anticipate it’s going to be any big deal. I’m more concerned about ‘Pokemon Go’ in my precinct than this.”

In written comments submitted during the regulatory review, some election officials welcomed the change.

“I believe that this provides voters with an opportunity to digitally capture and even share a memento of their voting experience; something which (other than a sticker) election administrators cannot provide,” wrote Fairfax County registrar Cameron Sasnett.

Another official said she fears it will open a “Pandora’s box for accusations of misconduct and lawsuits.”

“For individuals who have a problem detaching from their electronic device(s), take the few minutes to vote in peace, without fear or intimidation,” wrote Norfolk registrar Stephanie L. Iles. “A person’s Snapchat story, Instagram or Facebook status can always be updated after they leave the building.”