Kahryn Riley

If this election cycle wasn’t already distressing enough, it will be now that some Michigan voters will have to choose between the right to vote and the right to free expression on Election Day.

Michigan is one of 17 states to clearly ban voters from taking selfies with their marked ballots; in 13 others, ballot pictures fall into a gray area. Our state’s prohibition is getting increased attention after it was lifted for a few days.

It all started when a Portage man named Joel Crookston posted a photo to Facebook showing his 2012 ballot, where he’d written in a college friend’s name. He learned later that he had inadvertently broken a law that forbids voters from revealing their marked ballots to anyone. The law also says that such ballots are not counted.

He sued the state last month, arguing that the ban is an unconstitutional violation of his right to free speech. Although the district court agreed and issued an injunction forbidding elections personnel from enforcing the ban, the appeals court stepped in at the request of state officials and suspended the district court’s ruling.

The appeals court held that there was not enough time before the November 2016 election to make an important First Amendment decision and “suddenly alter Michigan’s venerable voting protocols.” So for now, Michiganians can either post a selfie or have their vote counted — but not both.

This ruling came over the objection of Chief Judge Guy Cole, Jr., who wrote in a strongly worded dissent that the decision amounted to “allowing an unconstitutional law to remain in effect while depriving Michigan citizens of their right to vote.” He noted that every other court that has considered selfie bans has found them unconstitutional. He also faulted Secretary of State Ruth Johnson for putting administrative expediency above citizens’ fundamental rights.

Johnson had argued in a brief to the appeals court that changing the rules to allow ballot selfies would create “chaos” on Election Day because the state would be “unable” to convey information about the change to poll workers in time. This week, she issued a statement lauding the decision to keep the ban in place, saying it was good that local clerks wouldn’t have to retrain 30,000 poll workers.

The secretary’s attitude is disappointing. Election laws and the secret ballot are supposed to serve voters, not the other way around. The state chose to create a legal emergency rather than communicate a simple rule change to election workers, suggesting that it is more concerned with keeping the status quo than with supporting new ways to exercise the right of free speech.

For better or worse, many people prefer publicity to privacy these days. If voters want to publish their proof of participation in the democratic process, the government should get out of their way and focus on maintaining the privacy of those who do not.

Kahryn Riley is a policy analyst at the Mackinac Center for Public Policy.