Last Tuesday’s election was littered with examples of an emerging trend on social media sites like facebook and twitter. The age old, patriotic practice of wearing your “I voted” sticker – America’s version of the inked thumb, generally with less explosions – has evolved into folks wielding smart phones from within the confines of the tiny voting booth and snapping instagram photos of their marked ballot for the world to see.
Sounds bizarre, right? But state statutes make it clear that posting your marked ballot online is against the law, and there is a case to be made for the argument against the practice – albeit a weak one.
The argument is enshrined in AS. 15.15.280.: Prohibiting the exhibition of marked ballots. It states, in part, that “a voter may not exhibit the voter’s ballot to an election official or any other person so as to enable any person to ascertain how the voter marked the ballot.”
The reasoning is fairly straightforward, and uniquely Alaskan. It’s a law against bribery.
Let’s say I’m a special interest group. I’m a union, or an oil company. Pick your bogeyman. I support a certain ballot initiative that happens to be fairly unpopular, and I’ve come to grips with the fact that I’m going to have to buy my way to an electoral win. So, I seek to enlist the cooperation of a few of my fellow citizens. Specifically, I’m after their votes in exchange for cash. But I’m going to want proof that they voted the way my money told them to vote.
Thanks to the advent of iPhones and Androids, technology has afforded me that very assurance. A quick picture can serve as the conclusive proof that the financial exchange took place the way in which it was agreed to; that all actors upheld their end of the bargain.
But the statute is not without possible unintended consequences.
Skipping a section, AS. 15.15.300. ominously puts a voter with a smart phone at the will of the poll worker who catches him taking the photo: “An election official may not allow a ballot to be placed in the ballot box that the official knows to have been unlawfully exhibited by the voter. A ballot unlawfully exhibited shall be recorded as a spoiled ballot and destroyed.”
Presumably, the ballot would be destroyed and the voter handed a new ballot. But could the voter be outright denied a second ballot to fill out and not exhibit online? It’s not specified. Things that aren’t specified tend to end in tears.
There isn’t any enforcement or penalty defined for taking to the Twitterverse with your marked in ballot, beyond the tricky mandate that the poll worker throw it out. And there is not explicit protocol in the event of a poll worker failing to throw out the unlawful ballot. Do they get in trouble too?
What we’re left with is an illegal act that anyone on Facebook witnessed countless examples of last week – including handfuls of candidates committing the offense.
It’s a discussion we need to have. Are smartphone images of filled in ballots actually being used as a method of validating illegal transactions? Are bribes actively taking place, and is this a quantifiable method of verifying the legitimacy of the transaction between offending parties? And, if it demonstrably is, should we curb our freedom of speech and expression as a means to deal with it?
We are better off recognizing that in a free society you have to prove why an act should be criminalized before making it illegal. It’s true for sitting down on public sidewalks, and it’s true for taking harmless pictures of your ballot. If we choose, which I wish we would, to deal with political bribery and corruption – or, at the very least the influence of money in politics – it’s hard to conceive that this law has any weight on larger issue.
When we see a good movie, we say so on Facebook. When we get a deal on a sweater, we tweet about it. When we run into a friend unexpectedly, we tag ourselves with them. The idea that banning an expression of pride for voting is an appropriate measure to address political corruption seems wildly idealistic, off target, and worthy of some timely revisions.