ACLU of Indiana Wins Challenge to State’s Ballot Photo Law

Indianapolis – Late yesterday a federal judge ruled on a challenge to an Indiana law, brought by the American Civil Liberties Union of Indiana last August, which would have made it a level six felony for a voter to take a ballot “selfie” at the polls or to share it on social networks.

In her decision in favor of the ACLU of Indiana, Judge Sarah Evans Barker said the law, Indiana Code § 3-11-8.15.5, which took effect July 1 and banned the practice of taking or sharing a photograph of one’s ballot, violates the First Amendment to the U.S. Constitution, and “…embodies a content-based restriction on speech that cannot survive strict scrutiny because it neither serves compelling state interests nor is narrowly tailored to achieve those interests.”

The decision, which stops the state from enforcing the law, comes in time to impact the Nov. 3, 2015 election.

“Taking a picture of one’s ballot and sharing it with family and friends is an expression of pride and enthusiasm about voting, and is a form of political speech that must be protected,” said ACLU of Indiana legal director Ken Falk. “We are happy that the First Amendment rights of all voters have been protected by the Court’s decision.”

In her ruling, Judge Barker cited a 1928 dissent written by U.S. Supreme Court Justice Louis Brandeis, noting “neither the truth nor the importance of his observation has waned” in the 87 years since it was written. Justice Brandeis wrote: “Experience should teach us to be most on our guard to protect liberty when the government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

A core function of the ACLU of Indiana is to protect the rights of free speech and expression guaranteed by the Constitution. The ACLU of Indiana filed the lawsuit on Aug. 27, on behalf of its members who wish to take and share pictures of their ballots.

The decision in Indiana Civil Liberties Union Foundation, Inc., d/b/a American Civil Liberties Union of Indiana v. Indiana Secretary of State, et al., Case 1:15-cv-1356-SEB-DML was entered in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, on October 19, 2015.