Appeals Court could hear NC ‘ballot selfie’ case in mid-September

The 4th US Circuit Court of Appeals could hear oral arguments in mid-September in a case challenging North Carolina’s ban against “ballot selfies.”

That timeline would give the court about a month to issue a decision before early voting starts for this year’s general election. There is no guarantee that the 4th Circuit will issue a ruling before early voting begins.

The court indicated Monday that the case now called Hogarth v. Hayes is “tentatively calendared” for oral argument between Sept. 15 and Sept. 18. Lawyers on both sides face a June 22 deadline to indicate any conflict with those dates. Plaintiff Susan Hogarth faces the same deadline for her final written brief in the case.

Early voting begins on Oct. 15 for the Nov. 3 general election.

Hogarth, a Libertarian and former state Senate candidate, is challenging five state laws that make up the ban on “ballot selfies.” She is working with lawyers from the Foundation for Individual Rights and Expression.

US District Judge Louise Flanagan upheld the challenged laws in March. Hogarth and FIRE have asked the 4th Circuit to reverse that decision.

The government’s response earlier ths month focused on efforts to combat “voter intimidation and election fraud.”

“A ballot is not secret if it is shared,” wrote lawyers representing the state and Wake County elections boards and Wake District Attorney Lorrin Freeman. “North Carolina therefore prohibits taking and sharing photographs of official marked ballots.”

“Hogarth contends that the State cannot justify that prohibition unless it identifies past instances of vote buying and coercion that specifically involve ballot selfies,” the government’s brief continued. “On her theory, it does not matter that the secret ballot freed American politics from the stranglehold of vote buying and voter coercion. It does not matter that vote buying and intimidation schemes continue and are difficult to detect.”

“It does not matter that snapping a picture with a cell phone is an easy, obvious way to provide proof that such schemes require,” the brief explained. “And it does not matter that some pressure cannot plausibly sustain a conviction — consider, for example, a person experiencing domestic violence who, though not explicitly threatened, fears what will happen if their abuser learns that they voted against the abuser’s preferred candidate.”

“If Hogarth is correct, then the State must ignore all that, wait until its voters and the integrity of its elections are injured, hope the scheme is uncovered, then return to court for permission to enforce the common-sense measures that Hogarth has sued to enjoin,” the government lawyers wrote.

“Fortunately, Hogarth is mistaken,” the brief continued.

The ballot selfie laws survive “strict scrutiny,” the most stringent form of judicial review, government lawyers argued, “given the secret ballot’s proven role in preserving free and fair elections and the obvious threat to ballot secrecy posed by taking and sharing pictures of marked ballots.”

“The First Amendment protects Hogarth’s right to tell the world how she cast her ballot and why,” according to the brief. “She can announce her vote on social media, circulate leaflets, march in a parade, put up yard signs and billboards, or write it in the sky. She can amplify that message by posting selfies taken outside the polling place, while waiting in line, or (with permission) while standing inside the voting enclosure.”

“But the First Amendment is not a license to delay or disturb other North Carolinians who are trying to exercise their constitutional right to vote,” the government lawyers argued. “Nor does it foreclose North Carolina’s efforts to maintain the secret ballot and preserve free and fair elections. Elections in North Carolina are safe, secure, and reliable. They should remain so.”

Hogarth filed her opening brief with the 4th Circuit on May 1. She and FIRE are pushing to have the issue resolved before the general election this fall.

The 4th Circuit agreed to an expedited briefing schedule to consider Hogarth’s appeal.

“Ballot selfies are core political speech at the heart of the First Amendment’s protection,” said Jeff Zeman of FIRE in a May statement. “North Carolina has failed to show that banning them addresses any real problem, offering only conjecture rather than the evidence the Constitution requires. We’re asking the Fourth Circuit to strike down North Carolina’s ballot selfie ban and stop the state from punishing people for harmless political expression.” 

“No matter where you vote or for whom you vote, participating in our democracy is something in which voters should take pride. Plaintiff-Appellant Susan Hogarth does,” according to Hogarth’s brief. “So she takes pictures of her voted ballots and posts them on social media — partly to promote her candidates; partly to model and advocate voting, and doing so for third-party candidates; and partly to object to North Carolina laws that prohibit her taking and posting the pictures at all. For that, the state sent Hogarth a letter threatening prosecution.”

“That’s because North Carolina criminalizes celebrating voting with ‘ballot selfies’ that uniquely express for whom and/or what you actually voted, even though they are core political speech entitled to the First Amendment’s ‘fullest and most urgent application.’” The court filing continued. “Despite that apex protection, the Defendant-Appellees offered — even with extensive briefing below — nothing more to justify banning ballot selfies than to ‘simply posit the existence’ of a few ‘abstract’ government interests, which cannot carry their constitutional burden for restricting speech.”

“As the First Circuit explained in invalidating a New Hampshire law similar to those in North Carolina, a ballot selfie ban that ‘reaches and prohibits innocent political speech by voters’ but is ‘unconnected to’ the government’s proffered interests cannot withstand First Amendment scrutiny,” Hogarth’s lawyers wrote. “Like New Hampshire’s ill-fated law, the statutory provisions comprising North Carolina’s ballot selfie ban ‘suppress a large swath of political speech’ without constitutionally sufficient justification.”

“Four provisions ban and criminalize taking and sharing photos of voted ballots anywhere (the ‘Ballot Photography Provisions’),” the court filing explained. “Singling out particular speech for disfavored treatment in this way is content discrimination that is ‘presumptively unconstitutional’ and subject to strict scrutiny’s ‘demanding standard.’ A fifth provision grants elections officials unbridled discretion to stop voters from photographing themselves in polling places (the ‘Voting Enclosure Provision’).”

“That kind of ‘arbitrary discretion’ is an unreasonable and thus unconstitutional burden on speech in a nonpublic forum,” Hogarth’s lawyers argued. “All five provisions (collectively, the ‘Ballot Selfie Ban’) censor speech at ‘the heart of the First Amendment’s protection,’ and Defendants failed to constitutionally justify below, under any applicable standard, restricting North Carolinians’ First Amendment rights in this manner.”

Flanagan issued a March 9 ruling upholding the state laws that constitute the ballot selfie ban. Hogarth filed a notice of appeal on March 20.

Hogarth’s lawyers cited “good cause” for speeding up the case’s schedule. “First, this appeal concerns a fundamental constitutional right that is tied directly to the upcoming election,” they wrote. “Second, because this appeal raises only legal questions, the parties can present the appeal on the existing record, and extensive factual review is unnecessary. And third, the interests of justice favor expediting this appeal because North Carolina voters deserve clarity about whether the First Amendment permits the government to limit their ability to express who and what they voted for in the November 2026 general election.”

The legal challenge began in August 2024 after election officials urged Hogarth to take down a photo she posted to social media. It showed Hogarth holding her completed primary election ballot. Flanagan issued an order allowing Hogarth to post a photo of her 2024 general election ballot without threat of prosecution.

After ruling in Hogarth’s favor in 2024, Flanagan ruled against her while resolving the legal dispute in March.

“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,’” Flanagan wrote in a 15-page order. “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.”

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.

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.

“Appeals Court could hear NC ‘ballot selfie’ case in mid-September” was originally published on www.carolinajournal.com.