One intriguing issue that popped up in the days before the 2016 election was that taking a photo of yourself or your ballot in a voting booth is technically illegal in 19 states, including South Carolina.
South Carolina law does not allow a voter to “allow his ballot to be seen by a person,” which has been interpreted as banning photographs in a polling location. It also does not allow a voter to mark their ballot “by which it may be identified.” The issue cropped up in October, when singer Justin Timberlake posted a selfie of himself voting in a Memphis, Tennessee precinct. While Timberlake had hoped his self-photo would encourage others to vote, Shelby County’s district attorney noted the photo violated Tennessee’s similar law. However, DA Amy Weirich said her office would not investigate the pop star.
A 2012 South Carolina Attorney General’s opinion stated that a judge would interpret the law as banning any cell phone ballot photos shared on social media. “It is thus the opinion of this office that any voter who allows his/her ballot to be seen, through any medium, with the apparent intention of letting it be known how he/she is about to or has voted, may be found to have violated the constitutional and statutory mandate for ballot secrecy in this State,” Senior Assistant Attorney General N. Mark Rapoport wrote at the time.
Seeking to prevent such a situation in South Carolina, State Rep. Jonathon Hill, R-Townville, has filed legislation that would explicitly allow a person to share photos of their ballot on social media. “I was very surprised to find out that’s illegal,” he told South Carolina Radio Network. “I think it would be a good time to update (the law) so as not to criminalize what has become a somewhat common behavior that people do now.”
Current violations of the state’s ballot secrecy laws could lead to a misdemeanor $100 fine or up to a year in prison. However, there are no known cases in South Carolina of anyone being charged for taking posting images of their ballot to social media. A Michigan judge also struck down that state’s similar law last year, arguing it violated the U.S. Constitution’s protections of political speech.
“As I see it, this is an infringement on a person’s liberty,” Hill said. “It’s your right to tell others who you’re voting for. It’s your right to advocate for or against a candidate or cause.”
He emphasized his bill would still not allow a person to take a photo of another voter’s ballot or use their social media image to commit voter fraud.