March 6, 2012 I took my (then) three year old to the polls to vote in the Republican presidential primary. My customary polling place in western Fairfax was quiet that day and I wanted to capture the memory of showing my son what it means to vote. I took a series of photographs with my phone to upload to the popular social networking site. I had second thoughts afterword and looked into the law. It turns out that Virginia election officials considered my taking of the photographs as a misdemeanor.

When you go into the voting booth on Tuesday (setting aside absentee voters) you should know there are substantial restrictions on you documenting your own vote. [read_more]

Background

Historically, taking copies of official ballots, or a picture of a marked ballot could be utilized to thwart otherwise valid elections. Supposedly a copy of a marked ballot can be used to pressure or trick others into voting for a particular candidate. They can also be used to prove a vote as part of a vote buying scheme. Exact replicas of official ballots could be potentially used to stuff a ballot box.

Does Virginia explicitly prohibit such polling booth pictures?

The exact answer is no. But, it would be unwise to face off against authorities over this issue. Va. Code § 24.2-1011 states, in part:

Any person who (i) carries an official ballot or copy thereof beyond or away from the voting booth, except to the officers of election, or (ii) votes any ballot except the ballot received from the officers of election, shall be guilty of a Class 1 misdemeanor. (ed. note: the lower the number the worse the offense).

Virginia law prohibits taking a copy of an official ballot away from the voting booth. Does a picture containing some or all of a marked or unmarked ballot constitute a “copy.” Perhaps someday soon we will find out with some unlucky guinea pig.

Can you at least take pictures in the polling place?

Virginia law technically does not prohibit taking pictures of yourself or inanimate objects in a polling place. There is no guarantee your jurisdiction will follow the law.

Candidate and party representatives are explicitly prohibited from taking photographs or videos in a polling place. Va. Code § 24.2-604(C).

Members of the media are allowed to film and photograph with permission under specific parameters. Va. Code § 24.2-604(J).

No one is allowed to take pictures that “hinder, intimidate, or interfere with any qualified voter so as to prevent the voter from casting a secret ballot.” Va. Code § 24.2-607.

But all photography was prohibited at my last polling place…

At the general election in 2012 I kept an eye out for any clear instructions regarding photography and found the sign at the right:

Regulations like this arise from some vague language such as prohibitions on hindering a qualified voter or disrupting the official duties of an election officer.

These general prohibitions are bolstered by a nonbinding guidance document issued by the state board of elections which states (without authority).

Source.

What is there left to do?

Given the potential criminal prohibition on copying ballots, documenting your vote is unwise. You will also likely face substantial opposition to taking pictures or video within the polling place due to a lack of clarity under Virginia law. The Digital Media Law Project provides some advice as to how to conduct yourself in the polling place if you desire to take video or pictures.

This is an issue that does not easily fit into the traditional left or right divide. Documenting your vote is encouraged by both left wing and right wing folks. In Virginia, we need a legislative change, not a test case.

Feel free to send me pictures from within or around your Virginia polling place indicating signage of rights or prohibitions regarding photography, and other interesting behavior regarding photography. These can be sent to me at ppradoslawNOSPAM@gmail.com (remove the NOSPAM, do not send me pictures that could constitute your alleged criminal behavior, sending me an email with or without pictures does not create an attorney-client relationship, and the communications will not be considered client confidential information; I will use pictures with permission only.)