How a ballot selfie could put you in jail in Illinois

There are clear First Amendment issues with outlawing this kind of political speech.

Early voting is upon us in Illinois. Mail-in ballots are free to fly.

But don’t dare take a picture of your vote.

Snapping a photo of your filled-in ballot and posting it on Facebook or Instagram is technically a Class 4 felony in Illinois, which comes with a prison sentence of one to three years. According to the Illinois Election Code, anyone who “knowingly” casts his or her ballot in a way that “can be observed by another person” is breaking the law.

While more than a dozen other states also forbid the ballot selfie, Illinois appears to be the only one where the “offense” is clearly classified as a felony. But it seems no one on record has been arrested for it.

So why is this still on the books?

The intent behind the law is pretty straightforward. These sorts of rules are meant as a firewall against vote-buying: Show me a photo of your ballot, I pay you.

Of course, there are already plenty of other laws in Illinois that explicitly outlaw vote-buying.

Sangamon County Clerk Don Gray knows that social media is a valuable tool to help drive voter turnout, so he devised a clever workaround, setting up a red-carpet area of sorts where voters can take photos of themselves at the polling place and share their civic pride.

Gray still backs the ban, though.

“For me it’s not really about vote-buying even though there are valid concerns there,” he said, “it’s more about a disruption of being in a voting booth much too long.”

But that kind of reasoning isn’t likely to pass constitutional muster.

There are clear First Amendment issues with outlawing this kind of political speech.

In 2016, a federal judge struck down New Hampshire’s ballot selfie ban, deciding in response to vote-buying concerns that the ban was “burning down the house to roast the pig.”

From 2015 to 2016, Utah, Nebraska, Hawaii and California all passed legislation allowing voters to photograph their ballots.

And Illinois came pretty close to overturning its ban in 2017. State Rep. Emanuel Welch, D-Hillside, filed a bill that allowed voters to take photos of their ballot as long as they didn’t accept any money in exchange. The House overwhelmingly supported the measure, which passed 97-14. But the Senate never took a vote on it.

The secret ballot is a crucial component of any democracy, and the law should always protect voter privacy. But if someone wants to express his or her choice for office, the law shouldn’t prevent that.

For some, the ballot selfie is the new “I Voted” sticker. Legalize it.