Andrew Gillum's Facebook ballot photo: 'You can't do it, but everybody does do it'

Jeff Burlew | Tallahassee Democrat

Show Caption Hide Caption Andrew Gillum casts his vote Democratic gubernatorial candidate Andrew Gillum casts his vote and talks about his chances for election on Tuesday.

Mayor Andrew Gillum may have run afoul of little-known provisions of Florida election law when he posted a photo of his ballot on social media today. But his chances of getting in trouble over it are virtually nil, according to one Florida law school professor.

Gillum posted a photo of his ballot on Instagram, Facebook and Twitter, with his name circled in, after voting in Tallahassee earlier today.

“I voted for the boy, who would one day become a man, a husband, father and mayor,” Gillum wrote in a Facebook post. “Today I voted for me. The next governor of the state of Florida.”

Florida Statute 012.031(5) says, “No photography is permitted in the polling place or early voting area.” The statute does not explicitly describe a penalty. Another statute, 104.20, makes it a first-degree misdemeanor for anyone who “allows his or her ballot to be seen by any person.”

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Bob Jarvis, a law professor at Nova Southeastern University in Fort Lauderdale, said the ballot secrecy grew out of the 19th century, when state lawmakers were concerned that voters could be punished by vigilante groups or employers if they didn’t vote a certain way. And while the laws are common, prosecutions are not.

“You can’t do it,” Jarvis said. “But everybody does do it and nobody ever gets prosecuted for it. And the reason no one gets prosecuted for it is there’s a very good argument that it violates the First Amendment — that you have a right to tell people what you have done and people interested in what you have done have a right to hear what you have done.”

Jarvis added violations of the law are typically inadvertent with no criminal intent.

Gillum’s campaign spokesman, Geoff Burgan, didn’t seem overly concerned. When asked about the legality of the post, he replied, “I guess Ron DeSantis will figure out Gillum’s ‘Lock Him Up’ chant sooner than we thought.”

In July, the South Florida Sun Sentinel reported three politicians may have broken the law, all within the span of a single week. All three said they were not aware of the statutes.

Supervisor of Elections Mark Earley said if elections staff saw someone with a camera, they’d ask that a photo not be taken. But, he said, “we’re trying not to look over people’s shoulders.”

“People do it all the time,” he said. “And there’s not much of a way for us to police it.”

Contact Jeff Burlew at jburlew@tallahassee.com or follow @JeffBurlew on Twitter.