How a Libertarian plans to challenge Colorado’s ‘ballot-selfie’ law

“If they’re kind of walking around saying they realize this is a dumb law, they should save the Colorado taxpayers the money for having to litigate this”

How a Libertarian plans to challenge Colorado’s ‘ballot-selfie’ law

 

Caryn Ann Harlos, the pink-haired spokeswoman for Colorado’s growing Libertarian Party, wants to make a video of herself filling out her mail-in ballot and explaining why she’s voting for Gary Johnson for president.

But there’s a hitch: In Colorado it is illegal to do that under a decades-old statute now commonly called the “ballot-selfie” law. Harlos is planning to challenge it if she has to.

Here’s the way that law is written:

[N]o voter shall show his ballot after it is prepared for voting to any person in such a way as to reveal its contents. No voter shall place any mark upon his ballot by means of which it can be identified as the one voted by him, and no other mark shall be placed on the ballot by any person to identify it after it has been prepared for voting.

Since a 2013 change in state election laws, Coloradans have been able to vote entirely by mail, which makes it easy to take a photo of the completed ballot and share it on social media. (I recently shared a photo of my blank ballot on Instagram, Facebook and Twitter just to show how one ballot measure is worded. Others have shared their actual votes.)

This is the first election in Colorado where voters can cast ballots for president by mail.

In Denver, the city’s district attorney Mitch Morrissey this week issued a news release reminding voters about the “ballot-selfie” law. Violating it, his office warned, “is a misdemeanor offense.”

The move drew immediate criticism, including a response from the state chapter of the ACLU, which pointed to recent court cases in New Hampshire and Indiana that have affirmed the right to take and share ballot selfies, “citing the First Amendment right of voters to express support for a candidate and to communicate that support to others.”

Legislation in seven additional states expressly authorizes “ballot selfies,” according to the ACLU. The group further pointed out that Colorado’s Voter Access and Modernization Act “specifically gives voters who need assistance a right to bring a friend, a family member, or any other designee to help at the polls, and they cannot be challenged when that help requires them to show their ballot to someone rendering assistance.”

As for Harlos, she is giving Morrissey and Republican Attorney General Cynthia Coffman an ultimatum: Back off or get sued.

In a letter sent today to Coffman and Morrissey from her attorney, Adam Frank, Frank asks both to declare Colorado’s ballot-selfie statute unconstitutional and to say their respective offices will not enforce the statute.

Adams continues:

Ms. Harlos is the Communications Director of the Libertarian Party of Colorado, as well as the Regional Representative for Western United States on the Libertarian National Committee. In her role as Communications Director, Ms. Harlos would like to make and publish a video of herself filling out her ballot while describing why she is voting for Gary Johnson, the Libertarian Party’s candidate for President. As the Communications Director for a third party, it is vital to her party’s future the she be allowed to publicize her vote on social media in order to encourage others to vote for her party’s candidates in this and future elections. In short, Ms. Harlos seeks to engage in essential political speech. Prosecuting her for doing so would be blatantly unconstitutional.

Harlos and her attorney want an answer by Oct. 26.

“If I do not hear from you by then, Ms. Harlos will assume that you are taking the position that this law is constitutional and she will seek to enjoin its enforcement,” Adams wrote. “You have the opportunity to either take a stand for the Constitution and free speech, or to spend taxpayer dollars to defend a plainly unconstitutional restriction on one of our most basic liberties. Please choose the side of freedom.”

Colorado’s law is old and the Denver District Attorney’s Office is not aware of anyone being prosecuted for violating it, says DA spokeswoman Lynn Kimbrough. Asked if Denver’s DA would pursue a case against someone for taking a ballot-selfie, she couldn’t give a direct answer.

“That’s not a question that I can give yes or a no to,” she told The Colorado Independent. “I can walk my answer all the way around it. I can tell you it’s never been prosecuted.”

The DA’s office is a complaint-driven agency, she says, meaning it mostly prosecutes based on investigations by police or complaints it receives. If someone did complain to the office about a ballot-selfie, Kimbrough says the office would look at the intent of the law, the intent of the person who allegedly violated it, and also what defenses that person might be able to raise, including the right to free speech. The office would then evaluate whether to expend resources on the case.

That’s not enough for Harlos the Libertarian.

“If they’re kind of walking around saying they realize this is a dumb law, they should save the Colorado taxpayers the money for having to litigate this,” she says. “And save Colorado citizens from the fear of having to spend a year in jail for exercising their rights.”

A spokesperson for Attorney General Coffman did not immediately respond to a request for comment.

 

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About the Author

Corey Hutchins

is a journalist in Colorado, and Columbia Journalism Review's Rocky Mountain correspondent for the United States Project. Follow him on Twitter @CoreyHutchins and email him at CoreyHutchins [at] gmail [dot] com.

2 Comments

  1. Howard Levine on said:

    This is not a first amendment issue. It is a voting regulation issue. It is designed to make it difficult to buy and sell votes, and it is a valid law just like laws prohibiting campaigning within a certain distance of a polling place.

    Anyone can fill out a sample ballot in a video. That’s legal and allows the desired free speech.

    If anyone does this with an actual ballot instead of a sample ballot, that person should be prosecuted to maintain the integrity of the ballot. Otherwise, we will get a situation where it will essentially be legal to buy and sell votes because it will be easy for the buyer to verify the sellers’ votes.

    This is one more reason to require in-person balloting. There could still be early balloting, but it would be at a polling location. Mail in ballots allow voter fraud to be committed too easily.

  2. Kenneth Freedman on said:

    Clearly it IS a First Amendment issue. In order for it to be related to buying and selling votes, it must be established that their was a sale or attempt to sell. You cannot establish that the practice is remotely common, or harmful. In fact, on the individual level, voting is nearly useless.

    People who advocate controlling free speech should be held to their own standards and jailed for doing so.

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