Taking selfies with the completed ballot in hand in order to publish one's voting decision online is a new trend in the USA that is now also occupying the judiciary there.
Is it compatible with the principle of secret and free elections to make one's voting decision publicly by posting selfies with the completed ballot in hand on social networks, or does this constitute a violation of the law? A US court in the state of North Carolina must deal with this question. In Germany, there are legal regulations.
Election selfies on the rise
Selfies with completed ballots posted on social networks are gaining more and more followers in the USA. More than half of the US states now have special legal regulations governing the handling of election selfies. However, the legal regulations are by no means uniform. In 14 provinces are the Election selfies simply banned, 13 states In contrast, they stipulate an individual Right to election selfiesOther US states have differentiated regulations and differentiate, for example, between permitted selfies of a mail-in vote at home and prohibited selfies from the voting booth.
Penalty threatened for election selfie
There is a general ban on voting selfies in North Carolina. A resident of North Carolina did not let the ban stop her from posting a voting selfie of herself with a completed official ballot on social media from her participation in the Libertarian Party's March 2024 primary elections. Shortly thereafter, she received a letter from the North Carolina State Board of Elections (NCSBE). The letter informed the voter that taking photos of cast ballots is prohibited in North Carolina. Referring to the relevant criminal law, she was informed that she had committed a Class 1 misdemeanor, which is punishable by a fine and Imprisonment up to 120 days can be punished.
Voter sues election committee
The letter and threat of punishment did not impress the voter. She filed a lawsuit against the members of the North Carolina State Election Commission. The plaintiff is relying on her right to political expression, which is protected by the First Amendment to the US Constitution. It could not be that she is prohibited from showing the world what and who she voted for. This right to publicly express her political opinion could not be taken away from her by an unconstitutional law.
Election authorities see election selfies as a danger
In its statement, the electoral authority refers to serious cases of electoral fraud in 2016 and 2018. The uncontrolled publication of election selfies poses the risk of offering and selling votes and contradicts the principle of free and secret elections.
Plaintiff is supported by the association
The plaintiff is receiving support from the Foundation for Individual Rights and Expressions. The common goal is to overturn the selfie ban before the upcoming US election in November or at least to get the electoral authority to refrain from enforcing the election selfie ban in the future with regard to the US Constitution. US lawyers consider the outcome of the case to be uncertain.
Are election selfies allowed in Germany?
What is the legal situation in Germany? Are selfies allowed in the voting booth? Article 38 of the Basic Law provides a first answer. According to this, members of the Bundestag are elected in free, equal and secret elections. The same applies to the state parliaments according to the constitutions of the states. Secret means that the election process as such cannot be observed by uninvolved third parties. The secret ballot is also not at the discretion of the voter – at least as far as the actual election process is concerned.
Selfie in the voting booth leads to rejection as a voter
The Federal Election Regulations (BWO) regulate the details. Section 56, Paragraph 2, Sentence 2 of the BWO prohibits any photography or filming in the voting booth, including election selfies. According to Section 56, Paragraph 6, No. 5a of the BWO, the electoral board must reject a voter if he or she has clearly taken a photo or film in the voting booth. However, if the ballot paper is already anonymously in the ballot box, rejection is no longer possible. Postal voters According to Section 66 Paragraph 3 of the Federal Voting Ordinance, voters must fill out their ballot papers without being observed and place them in the ballot envelope. However, anyone who takes and posts a selfie at home does not have to fear any consequences. Outside of the actual voting process, everyone can make their voting decision publicly. However, it is a criminal offense to take a photo of someone else's ballot paper and post it. According to Section 107c of the German Criminal Code, this is punishable by a prison sentence of up to 2 years or a fine.
