Silberberg v. Board of Elections of New York
272 F. Supp. 3d 454
S.D.N.Y.2017Background
- Plaintiffs challenged N.Y. Elec. Law § 17-130(10) (criminalizing showing a marked ballot) as applied to taking and posting "ballot selfies" from polling places, and also challenged the New York City Board of Elections’ long-standing no-photography policy at polling sites.
- Bench trial was held; plaintiffs withdrew claims about absentee/special federal ballots and consented not to pursue photographs of ballots not taken at polling sites.
- Evidence showed historical origins of the statute in the 1890 Australian-ballot reforms, recent prosecutions and vote-buying schemes in New York, expert testimony that allowing ballot photos facilitates verification and thus vote buying/intimidation, and queuing-model evidence that in‑poll photography materially increases wait times.
- Plaintiffs argued the statute is overbroad and not the least restrictive means (pointing to prosecution of vote buying and narrower bans), and that ballot selfies are potent political speech.
- Defendants argued the law and the City no-photography policy are necessary to protect ballot secrecy, prevent verification by vote buyers/intimidators (including social coercion), and to preserve order and prevent turnout suppression from longer lines.
- The Court concluded § 17-130(10) prohibits ballot selfies, survives strict scrutiny as narrowly tailored to the compelling interest in preventing vote buying and coercion, and—alternatively—is a reasonable, viewpoint-neutral restriction in a non-public forum; the City photography ban is content-neutral and permissible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 17-130(10) covers taking/posting "ballot selfies" taken at polling places | Silberberg et al.: statute should not reach modern ballot selfies | State: "showing" a marked ballot includes photographic display; statute historically intended to ban verification methods | Held: statute prohibits ballot selfies (text, purpose, and legislative intent support this) |
| Whether § 17-130(10) violates the First Amendment (strict scrutiny) | Plaintiffs: political speech; statute is overbroad and not least-restrictive—prosecute vote buyers instead or target fraudulent uses | State: compelling interest in preventing vote buying/intimidation and preserving ballot secrecy; selfies facilitate verification and social coercion; no effective narrower alternative | Held: statute survives strict scrutiny as narrowly tailored to a compelling interest |
| Forum analysis — what level of scrutiny applies (public, limited, or non-public forum)? | Plaintiffs: Reed and other decisions require strict scrutiny for content-based rules | Defendants: polling places are non-public fora (temporary, regulated spaces) and forum analysis remains applicable | Held: polling places are non-public fora; statute is permissible as a reasonable, viewpoint-neutral restriction in that forum (alternate holding to strict-scrutiny analysis) |
| Validity of NYC Board no-photography policy | Plaintiffs: Board exceeded authority and policy burdens speech | City: policy is content-neutral, adopted to protect privacy, prevent disruptions, reduce wait times, and prevent counterfeit/child-photography issues | Held: policy is lawful and content-neutral; narrowly tailored/ reasonable to serve significant interests and leaves alternative channels |
Key Cases Cited
- Burson v. Freeman, 504 U.S. 191 (1992) (upholding election-day buffer zone to protect ballot secrecy and prevent vote buying/intimidation)
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (strict scrutiny for restrictions in traditional public fora and narrow‑tailoring/time‑place‑manner framework)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015) (definition of content‑based speech regulation)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (standards for content‑neutral time, place, manner restrictions)
- Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) (forum analysis and differing scrutiny by forum type)
- Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997) (ballots are not public fora; state may regulate ballot use)
- Ashcroft v. ACLU, 542 U.S. 656 (2004) (least‑restrictive‑means requirement under strict scrutiny)
- United States v. Grace, 461 U.S. 171 (1983) (public forum analysis)
- Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015) (government‑speech doctrine and discussion of forum analysis)