In North Carolina, it’s illegal to take a photo of your ballot after you’ve filled it out. On Tuesday, a panel of federal appellate judges heard arguments over whether they should declare the law unconstitutional.
“The only thing North Carolina’s ballot selfie ban does is criminalize otherwise lawful speech,” Jeff Zeman, an attorney for the Foundation for Individual Rights and Expression, which is challenging the law, said Tuesday during oral arguments at the U.S. Court of Appeals for the Fourth Circuit.
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Critics of the law say it’s unconstitutional for the state to ban people from showing off who they’re voting for and encouraging others to do the same. The state, however, says people can do that in plenty of other ways that don’t raise the potential for fraud. State elections officials say the law is needed to stop vote-buying schemes, by removing an easy way for corrupt politicians to verify that people they paid to vote for them actually followed through.
State government attorney Thad Eagles laid out a hypothetical vote-buying scheme to judges Tuesday: “Members of the conspiracy had to either rope in election officials, or they had to go to the polls, lie to the election officials, and go in with the voter to watch them vote,” Eagles said. “Obviously, common sense tells us if you could just snap a picture and text it, that process is much, much easier.”
People break the ban on “ballot selfies” every year, usually unaware they’re committing a crime and simply excited to show off their civic participation. But one Wake County woman violated the ballot selfie ban on purpose in 2024, tangled with state election officials over it, and is still fighting to have the law overturned.
Susan Hogarth is a Libertarian who was running for a seat in the state Senate two years ago when she posted a photo of herself with her ballot, showing who she was supporting in that year’s Libertarian Party primary races, to choose the party’s nominees for president and governor.
Hogarth knew she was violating the law but believed the law was wrong, and she said as much when she posted her photo to social media anyway. So when the North Carolina State Board of Elections sent her a letter telling her that her social media post was technically a crime — and asking her to delete it or face possible prosecution — she doubled down and took the state to court.
“It's an important expression of your political feelings to get other people enthused about your candidates," Hogarth told WRAL in a 2024 interview. "I think we need more openness in politics, not less.”
The state agrees with her that political statements are generally good for people to be allowed to make. But its argument is that there are plenty of other ways for voters or politicians to exercise their First Amendment rights without paving the way for voter fraud.
“North Carolinians are free and encouraged to tell everyone they want who they voted for and why in any number of different ways,” Eagles said. “The state's concern is not with the message here. It's not about the communication. It's about the probative effect of a picture of a marked ballot. … That's what you need, to have a vote buying scheme actually work.”
One of the judges hearing the case, Allison Rushing, asked him how many vote-buying schemes this law has stopped.
There have been none, Eagles acknowledged. However, he said, that shouldn’t matter when deciding whether or not the law should be allowed to remain in place.
The judges didn’t immediately issue a ruling Tuesday. With ballots already in the mail, and Election Day fast-approaching on Nov. 3, it’s unclear whether they’ll decide the fate of the law in time for this year’s midterm elections. A spokesperson for the State Board of Elections declined to comment on the case beyond the board attorney’s courtroom arguments Tuesday.