Federal judge upholds NC ban on ‘ballot selfies’
A federal judge has upheld North Carolina’s ban on “ballot selfies,” rejecting a Libertarian voter’s challenge against a group of laws outlawing photos of completed election ballots.
Plaintiff Susan Hogarth had challenged five state laws related to “ballot selfies” in August 2024 after election officials urged her to take down a photo she posted to social media. It showed Hogarth holding her completed primary election ballot. A court order allowed Hogarth to post a photo of her 2024 general election ballot without threat of prosecution.
Now the same judge who ruled in Hogarth’s favor in 2024 has ruled against her in resolving the legal dispute.
“First, banning photographs of completed ballots and persons in a voting booth to prevent vote-buying and coercion is connected to maintaining the ‘right to vote freely … [and] protecting voters from confusion and undue influence,’” US District Judge Louise Flanagan wrote in a 15-page order Monday. “This prohibition prevents the use of the voted ballot or a person in a voting booth as proof of compliance in a vote-buying scheme, and protects voters from compulsion to disclose photographs of their ballot or themselves to ensure submission to a would-be vote intimidator’s demands.”
“The intended purpose of a voting booth is to serve as ‘an island of calm in which voter can peacefully contemplate their choices,’ not a place in which a person votes in a manner procured by purchase, impelled by threats, or otherwise influenced by others engaging in such conduct. Defendants’ interests in preventing bribed and forced votes are connected to maintaining the integrity of the voting booth,” Flanagan added.
“Common sense and logic support the proposition that photographs of voted ballots or voters, taken within voting booths, create opportunities for abuse through vote-buying and coercion, because the briber or intimidator could demand a photograph to ensure compliance with the bribe or threat, or the practice could instill fear in others that such a demand could be made,” Flanagan explained.
“Plaintiff faults defendants for failing to support their arguments with concrete examples of vote-buying or intimidation schemes foiled by the challenged statues,” the order continued. “But the very absence of such schemes, by ‘common sense and logic,’ supports the notion that the statutes promote defendants’ interest in preventing such schemes. And in any case, defendants are not required to ‘adduce specific factual evidence that its interests were advanced by the [statutes] or that the expressive activity banned did interfere with the forum’s intended use.’”
“In sum, defendants’ interest in preserving the integrity and order of polling places is so strong it can satisfy strict scrutiny, so it is certainly strong enough to qualify as reasonable under nonpublic forum analysis,” Flanagan wrote. The judge employed “nonpublic forum analysis” since the laws banning ballot selfies applied to conduct in voting booths at polling places.
“[T]he statutes are reasonable means to achieve that end, because they limit minimal expressive activity relative to defendants’ interest just noted, defendants need not produce empirical evidence as plaintiff argues, and the statues are capable of reasoned application,” Flanagan wrote. “For these reasons, plaintiff’s as-applied challenge to the five statutes does not succeed.”
Flanagan issued a March 2025 order rejecting motions from election officials and Wake County District Attorney Lorrin Freeman to dismiss the lawsuit. Flanagan agreed to drop state Attorney General Jeff Jackson from the case.
Hogarth and the remaining defendants filed documents in July 2025 seeking a judgment on the pleadings. They asked Flanagan to decide the case based on written court filings without holding a trial or seeking additional evidence.
“’One person, one vote’ is the foundation of our republic, yet in North Carolina it is a crime to celebrate democracy with a photograph of yourself and your vote — that is, to take and share a ‘ballot selfie,’” Hogarth’s lawyers wrote. “Ballot selfies help voters uniquely show support for political parties, candidates, and the act of voting by depicting for whom they actually voted. Ballot selfies are accordingly core political speech to which the First Amendment ‘has its fullest and most urgent application,’”
“There is no justification Defendants can offer to render that violation of voters’ First Amendment rights constitutional,” the court filing continued.
“Four North Carolina statutes ban taking photographs of a voted ballot and criminalize sharing them (the ‘Ballot Photography Provisions’), while a fifth grants elections officials unbridled discretion to stop voters from photographing themselves in the polling place (the ‘Voting Enclosure Provision’). These laws (collectively, the ‘Ballot Selfie Ban’) are content-based restrictions of protected speech that single out ballot selfies for disfavored treatment,” Hogarth’s lawyers explained.
“The undisputed facts provide no support for Defendants’ assertions that ballot selfies in North Carolina facilitate ‘vote buying,’ ‘social coercion,’ ‘delays,’ ‘distraction,’ or ‘voter intimidation,’ or that they violate other voters’ privacy,” the court filing added. “These justifications are, at best, ‘merely conjectural’ and cannot serve as lawful reasons to prohibit protected speech.”
“Defendants therefore cannot show the Ballot Selfie Ban furthers either a compelling interest under strict scrutiny or a ‘valid interest’ under the ‘reasonableness’ test. Nor can Defendants explain why the state could not achieve its ends through less restrictive means by enforcing existing statutes that directly address their asserted harms, a failure that dooms the Ban under any test,” Hogarth’s lawyers wrote.
“Plaintiff challenges five longstanding, reasonable, viewpoint-neutral laws that are necessary to serve North Carolina’s interests in curtailing vote buying and voter intimidation,” lawyers from the NC Department of Justice and Wake County Attorney’s Office responded.
“Plaintiff lacks legally sufficient claims because the State’s interests are significant and the laws’ regulations on speech are limited,” the government lawyers added. Even under stricter scrutiny. “the State’s interests are compelling.”
A November 2024 court filing detailed a Wake election official’s attempt to block Hogarth from taking a photo of her ballot during early voting in the 2024 general election.
Flanagan issued an order on Oct. 21, 2024, protecting Hogarth from prosecution for taking another ballot selfie during the general election.
Yet Hogarth reported that she encountered problems when she cast a ballot on Oct. 26 during early voting in Wake County.
“Hogarth took approximately two minutes to complete her ballot,” her lawyers wrote. “After completing her ballot, while still in the voting booth, Hogarth used her cell phone camera to take ballot selfies, including pictures of: a. Both sides of her voted ballot; b. Herself with a ‘no photos’ sign posted to the voting booth; and c. Herself in the voting booth, holding up her voted ballot.”
“It took Hogarth less than one minute to take the photographs. While Hogarth took the photographs, a Wake County Board of Elections official stood approximately 10 feet away. While Hogarth was taking her final ballot selfie, the elections official approached Hogarth and commanded, ‘you cannot take a picture of your ballot, you need to delete that, please.’ Hogarth advised the elections official that a court had ordered she could take ballot selfies without fear of prosecution,” the court filing continued.
The elections official asked Hogarth to wait, then walked away. “The public, in-person confrontation by an elections official made Hogarth uncomfortable and anxious,” her lawyers wrote.
About 2 ½ minutes later, the official returned and said, “I checked with our chief judge, she called the Board of Elections, and you’re good.” Hogarth thanked the official, submitted her ballot, and left, according to the court filing.
“No one had to wait to enter a voting booth while Hogarth was present in the voting enclosure. No elections official at the polling place notified Hogarth that her time in the booth had expired. Hogarth did not disrupt the polling place and no elections official at the polling place told Hogarth otherwise. Hogarth did not intimidate any other voters and no elections official at the polling place told Hogarth otherwise. Hogarth did not invade any other voter’s privacy, and no elections official at the polling place told Hogarth otherwise,” the court filing continued.
Without the court order, Hogarth believed elections officials would not have allowed her to take the photos “or leave the polling place with her ballot selfies,” her lawyers wrote.
“Election officials accosting a voter in a voting booth and instructing them to cease taking and to delete ballot selfies would chill a person of ordinary firmness from engaging in the protected expression of taking and sharing ballot selfies,” the court filing continued.
“I voted Saturday, and was privileged to have [Libertarian presidential candidate Chase Oliver] @ChaseForLiberty waiting for me outside the poll, so I got a sort of #ballotselfie inception thing going on here,” Hogarth posted Oct. 28 on X/Twitter.
“NC’s #ballotselfie ban is still bs! Hope this is the last year for the scary signage in the polling station!” Hogarth added at the end of the social media post.
“Ballot selfies combine two cherished American freedoms — voting and political expression,” according to a brief Hogarth’s lawyers filed in September 2024. Hogarth is working with lawyers from the Foundation for Individual Rights and Expression. “As the First Circuit and several district courts have held, ballot selfies are core political speech that the State cannot ban without supplying concrete evidence of their harm to compelling state interests.”
Hogarth was the Libertarian candidate in the state Senate District 13 election in 2024. She secured 2.9% of the vote in a race won by incumbent Democratic Sen. Lisa Grafstein.
“Federal judge upholds NC ban on ‘ballot selfies’” was originally published on www.carolinajournal.com.
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