Thеse are the Court’s findings of fact and conclusions of law after a bench trial of an action to permanently enjoin a provision of New York Election Law that prohibits the showing of a marked ballot to another person as applied to the taking of a photograph depicting an individual along with that individual’s marked ballot (known as a ballot selfie) and posting it to a social media site. Also challenged is a separate policy of the Board of Elections of the City of New York (the “City Board”) that prohibits photography at polling sites, subject to exceptions for members of the press who obtain proper credentials.
N.Y. Elec. Law § 17-130(10), first enacted in -1890 as part of the Australian ballot movement, provides that “.[a]ny person who ... [sjhows his ballot' after it is prepared for voting, to any person so as to reveal the contents-... is guilty of a misdemeanor.” The language of this statute and the purpose for its enactment — combating vote buying and voter intimidation by depriving the perpetrator of a means by which to verify his • target’s compliance — sweep within their reach the act of taking a ballot selfie at a polling place and posting it to a social media site. Posting a photograph of one’s marked ballot -to social media is indisputably a potent form of political speech, presumptively entitled to protection under the First Amendment.-
For reasons to be explained, the statute as applied to ballot selfies survives strict sсrutiny. The State of New York has a compelling interest in preventing vote buying and voter coercion. The State’s interest in the integrity of its elections is paramount; The law is also narrowly tailored, for a law prohibiting the display a marked ballot only for the purpose of vote buying or coercion would' be ineffective'.
Alternatively, the Court finds that the statute is a reasonable, viewpoint neutral restriction of -speech within a non-public forum.
The City Board’s policy prohibiting photography is not a content-based restriction
Judgment will be entered for the defendants.
BACKGROUND and EVIDENCE
I. Procedural History.
Plaintiffs commenced this action on October 26, 2016, less than 2 weeks before the 2016 presidential election, and moved for a preliminary injunction against enforcement of N.Y. Elec. Law § 17-130(10) against voters who, like, plaintiffs, wished to photograph themselves together with their completed ballots at polling sites in New York City and then post those photographs to a social media site. The Court denied the motion with respect to photographs of marked ballots taken at polling sites, and declined to reach the issue of photographs of ballots not voted at polling sites due to plaintiffs’ failure to demonstrate standing. (Nov. 3, 2017, Mem. and Order, Dkt. 20 at 3-4.) The Court also declined to rule on the City Board’s no photography policy because the record was inadequately developed. (Id. at 16.)
Plaintiffs amended their complaint on December 27, 2016, (Dkt. 46), and again on April 17, 2017, (Second Amended Complaint, Dkt. 90 (“SAC”).) The SAC includes a challenge to the City Board’s no photography policy. (SAC at ¶¶ 23-27.) The SAC added plaintiff Michael Nabavian, an American citizen living in the United Kingdom who allegedly intends to vote in future federal elections by absentee ballot. (SAC at ¶ 8.) The SAC further alleges that plaintiffs Rebecca White and Michael Emperor expect to vote by absentee ballot in the 2017 general election. (SAC at ¶ 28.) The SAC alleges that both § 17-130(10) and the City Board’s no photography policy violate the First Amendment to the United States Constitution as well as art. 1, § 8 of the New York Constitution.
The bench trial was held on August 29 and 31, 2017. Witness testimony and documentary evidence was received from all parties. At the close of plaintiffs’ case, plaintiffs consented to the withdrawal of all claims regarding photographs of absentee ballots or other ballots- not voted at polling sites. (Tr. 39-40.)
II. The Evidence at Trial.
A. Plaintiffs’ Case in Chief.
Plaintiffs called two witnesses: plaintiff Eve Silberberg and Katherine Brezler, the National Digital Director for The People for Bernie Sanders. Plaintiffs also introduced documentary evidence, specifically a photograph of President Donald Trump and his wife voting and the City Board’s Basic Poll Worker Manual for 2017/2018.
Ms. Silberberg, who is registered to vote in New York County, intends to vote in the 2017 and 2018 general elections, and wishes to photograph her marked ballot at the polling site and then show the photograph to others by posting it to social media or in some other manner. (Direct Testimony of Eve Silberberg, July 7, 2017, Dkt. 110-2 (“Silberberg Direct”) at ¶¶ 3-6.
Ms. Brezler admitted that her opinions regarding the relative impact of messages with words, and messages with both words and images, were not based on any studies or surveys. (Tr. 23-25.) Instead her opinions were based on her personal experience and frequent discussions with colleagues. (Tr. 24.)
B. State Defendants’ Case in Chief.
The State Defendants are the New York State Board of Elections (the “State Board”) and its commissioners, Peter Ko-sinski, Douglas Kellner, Andrew Spano, and Gregory Peterson, in their official capacities as Commissioners of the State Board. The State Defendants; called two witnesses: defendant Douglas Kellner, Co-Chair of the State Board, and Professor E. Scott Adler.
The State Defendants also introduced documentary evidence, including images of New York ballots before the introduction of uniform ballots and documents related to the ongoing prosecution in this district of the, perpetrators of an alleged vote buying scheme.
i. Co-Chairman Kellner.
• Co-Chairman Douglas Kellner testified regarding the history of voting in New York, recent vote buying schemes, and the history of and continued need for N.Y. Elec. Law § 17-130(10). Co-Chairman Kellner was a commissioner of the City Board from 1993 until 2005, when he was appointed as Co-Chair of the State Board. (Direct Testimony of Douglas Kellner, July 28, 2017, Dkt. 127-4 (“Kellner Direct”) at ¶ 1.) He has testified as both an expert witness and a fact witness in numerous election law proceedings, including proceedings in federal court. (Kellner Direct at ¶ 2.) The State Board and the-county boards of election are bipartisan agencies created by New York’s legislature and tasked with administering and enforcing New York’s election laws. (Kellner Direct at ¶ 5.)
Voting by ballot was first instituted in New York in 1777 for the election of certain public officials. (Kellner Direct at ¶¶ 6-7.) New York’s second Constitution, adopted in 1821, required voting by ballot for most public offices. (Kellner Direct at ¶ 7.) Early in the era of bállot voting, the
To address these continued problems, New York began mandating secret -ballots starting in 1890 as part of the Australian ballot movement. (Kellner Direct at ¶ 12.) Mandating, secret, ballots wаs just one measure the legislature. took to restore integrity to New York’s electoral process. Other measures included assigning county governments the responsibility for printing ballots, mandating that the ballots be uniform, introducing the voting booth, prohibiting electioneering within 160 feet of the polling place, and criminalizing the display of a marked ballot. (Kellner Direct at ¶ 12.)
N.Y. Election Law § 17-130(10) has been in effect in substantially the same form for 127 years. (Kellner Direct at ¶ 13.) Based upon Co-Chairman Kellner’s research, the legislative intent behind the law was:
[T]o protect not only.the fundamental right of individual voters to cast a ballot in a manner that is not susceptible to coercion, intimidation or vote buying,but also the right of all voters, as well as candidates, to elections free of such pressures. The theory behind the law was that • prohibitions against bribery and intimidation would have little effect if individual voters could voluntarily offer documentary proof of how they were voting to a briber or intimidator, whefe-as barring the voter from supplying such proof would discourage the coercive conduct by making the voter’s compliance unverifiable.... The prohibition in § 17-130(10) against showing one’s marked ballot to another person does not just protect the voter who may be tempted or pressured to share his or her marked ballot; it also protects all other voters and candidates from the distortion of elections by votes prompted by bribery or intimidation. It thus protects the integrity of the elective system and the right оf all voters and candidates to honest elections.
(Kellner Direct at ¶¶ 4,13-14.)
The 1890 reforms appear to have had their intended effect: while, prosecutions for bribery and coercion of voters were commonplace before these reforms were enacted, since then such prosecutions have declined substantially. (Kellner Direct at ¶ 15.) But all attempts to bribe voters have not ceased. (Kellner Direct at ¶ 16.) Within the last five years vote buying schemes have been uncovered in New York and elsewhere. (Kellner Direct at ¶ 16.) In Co-Chairman Kellner’s opinion this shows that “[t]he economic and political motivations for voter bribery still exist, but the ability to carry out such a scheme is significantly hampered by the prohibition” on showing a marked ballot. (Kellner Direct at ¶ 16.)
Though New York law mandates that voting be done in secret, it does not require that voting booths be used; it is permissible to mark one’s ballot at the polling place, but outside ■ of the voting booth, so long as one does not display one’s ballot. (Tr. 45.) And while voters may not knowingly display their marked ballot, voters need not take any special steps to prevent others from seeing their marked ballot. (Tr. 45-46.) Because of the distance between voting booths and the angle of sight lines, a person standing at a voting booth in New York City would not be able to see the ballot of the person in the next booth merely by turning his or her head to the side or leaning slightly. (Tr. 46.)
ii. Professor Adler.
E. Scott Adler, Ph. D., Professor of Political Science at the University of Colorado at Boulder testified as an expert regarding the history of the Australian ballot reforms and their importance to the integrity of American elections and opined that legalizing ballot selfies would contribute to an increase in vote buying and voter coercion.
The adoption of the secret ballot in the United States was part of a set of late 19th-centry reforms intended to address corruption in the electoral process, including vote buying. (Direct Testimony of Stephen Adler, August 7, 2017, Dkt. 128-1 (“Adler Direct”) at ¶ 9.) Other reforms adоpted in New York and elsewhere to ensure the secrecy of the -ballot included the introduction of government-printed ballots containing the names of all candidates and rules prohibiting removing ballots from polling places. (Adler Direct at ¶ 11.) Today, every state has laws requiring voting by secret ballot. (Adler Direct at ¶ 14.)
Dr. Adler testified that the key impediment to vote buying and voter intimidation schemes is the inability for the perpetrators to monitor their targets’ voted ballots at polling sites. (Adler Direct at ¶ 6.) A voter could accept a bribe, agree to vote for a certain candidate, and then vote for another candidate but still collect payment because the vote buyer has no way to confirm that the .voter followed through on the agreement other than the voter’s word. (Adler Direct at ¶' 19.) Allowing photographs to be taken of marked ballots at polling sites and then shown to others would remove this impediment and -make it simple for perpetrators to verify the votes of their targets. (Adler Direct at ¶ 6.)
Following the implementation' of these reforms, political corruption committed at polling sites and the ballot box virtually disappeared. (Adler Direct at ¶ 15.) However, this was not for lack of trying on the part of individuals determined to continue
Voter coercion and intimidation can also corrupt elections. Documented examples of such intimidation involve threats of eviction, loss of employment, and physical violence. (Adler Direct at ¶ 35.) More subtle forms of coercion exist in the form of social pressure to vote in a particular way by employers, family, and friends. (Adler Direct at ¶ 36.) Concerns regarding undue pressure by employers are heightened by the fact that nearly half of employers already attempt to recruit employees into political action and communicate with workers regarding voting, including directing workers to support particular candidates. (Adler Direct at ¶ 40.) Employees are more likely to accede to this pressure when they are being monitored. (Adler Direct at ¶ 41.) Such monitoring could take the form of either explicit direction or social pressure to reveal a photograph of one’s marked ballot on social media. (Adler Direct at ¶ 42.)
Studies on electoral corruption in various countries show that vote buying increases when a voter’s vote may be monitored. (Adler Direct at ¶ 21.)
Allowing ballot selfies would likely negatively impact voter participation by increasing wait times at polling sites. (Adler Direct at ¶ 57.) Tеn to fifteen percent of non-voters fail to vote due to lengthy wait times. (Adler Direct at ¶ 59.)
C. City Defendants’ Case in Chief.
The City Defendants are the City Board, its commissioners (Maria Guastella, Frederic Umane, Jose Miguel Araujo, John Flateau, John Zaccone,
The City Defendants also introduced copies of the no photography signs placed in polling sites and slides used for instructing poll workers where the signs are to be displayed at the polling site.
i. Director Ryan.
Director Michael Ryan recounted the history of the City Board’s policy restricting photography at polling sites and explained the continued need for such policy. Director Ryan has been the Executive Director of the City Board since August 2013, and before that served as the Commissioner of Elections in the City of New York. (Direct Testimony of Michael Ryan, July 28, 2017, Dkt. 122-2 (“Ryan Direct”) at ¶ 1.)
City Board policies are made by majority vote of the ten commissioners at City Board meetings. (Tr. 98.) Since at latest 1995 the City Board has had a policy prohibiting photography at polling sites by anyone other members of the press who have obtained prior authorization from the City Board and met certain requirements. (Ryan Direct at ¶ 3.) The policy was
The City Board is especially concerned that allowing photography at polling sites will increase the time it takes to vote. (Ryan Direct at ¶ 6.) Increasing the time it takes to vote could suppress voter turnout. (Ryan Direct at ¶ 6.)
Currently, the no photography policy is communicated to voters through the posting of signs depicting the international sign for no photography of a circle around a camera with a line through it (4 per polling site in the 2016 general election) and a single black and white sign advising in English, Spanish, Chinese, Korean, and Bengali that no animals, smoking, eating, drinking, or photography are allowed at the polling site. (Ryan Direct at ¶¶ 13-15; City Defs.’ Ex. 2.) Poll workers are generally trained every July through the September primary election, with additional refresher training for certain poll workers in October, including' instructions relating to the no photography policy. (Ryan Direct at ¶¶ 16-17.)
ii. Professor. Graves.
Stephen Graves, Ph. D., the Abraham J. Siegel Professor of Management at the Massachusetts Institute of Technology, testified as an expert regarding a queuing analysis he performed- based on a model used to simulate the amount of time voters would spend waiting in line at polling sites under circumstances where various percentages of voters took photographs of their marked ballots. Dr. Graves constructed his model using information provided by the City Board, including the number of voting booths (also known as privacy booths) at various sample polling sites in New York City, and a study regarding the amount of time it took Voters at Michigan polling sites to complete the voting process.
Dr. Graves’ model accounts for three stages of the voting process; check in, vote, and ballot scan. (Direct Testimony of Stephen Graves, July 28, 2017, Dkt. 122-1 (“Graves Direct”) at ¶ 17.) Queuing theory, applied to the voting process, hypothesizes that: “holding everything else constant, voters will wait in longer lines on Election Day (1) the more voters come to the polls, (2) the longer it takes them to check in, vote, or scan ballots, and (3) the fewer poll books, privacy booths, and scanners there are in a precinct.” (Graves Direct at ¶ 24.)
Dr. Graves based his .model upon the ten New York City polling sites that serviced the most voters during the 2016 general election. (Graves Direct at ¶ 26.) Simulations run using the model analyzed increased wait times due to photographs taken by voters while they were at the privacy booths, under the assumption that most voters who photograph their ballots will do so at this time. (Grаves Direct at ¶ 29.) Several variables were needed for the analytical model: “the process and rate at which voters arrive to the polling station; the service time to vote and possibly, to take a photograph; and the number of ... privacy booths in which a voter can mark a ballot.” (Graves Direct at ¶ 30.)
The model simulated the four hours between the polls opening at 6 a.m., through 10 a.m., the busiest period of the day, and used data provided by the City Board from
Dr. Graves ran several simulations with his model with different variables for the proportion of vоters who took photographs: 20%, 50%, or 100%, and adjusted the time to vote in each simulation by increasing the three minute control by the percentage in each of these three alternatives. (Graves Direct at ¶ 40.)
The simulations generated random arrival times for a predetermined estimatéd total number voters over the time period of the simulation. (Graves Direct at ¶ 42.) Once the voter arrives, the voter occupies a vacant booth, or if one is not available, joins a queue and waits until one becomes available. (Graves Direct at ¶ 42.) The voter then spends a set amount of time in the privacy booth; three minutes for the control group and three minutes plus additional time for the simulations where voters take photographs, and measures the wait time for each, voter, calculated as the time between when the voter arrives and when the voter first occupies a -booth. (Graves Direct at ¶ 42.)
Each of the simulations were rim a number of times and wait times were averaged for each sample polling site and for each alternative percentage of voters taking photographs. (Graves Direct at ¶ 43.) The results of the simulations demonstrated that the presence of individuals taking photographs (and thus spending longer times in the privacy booths) caused significantly increased wait times compared with the simulations in which no photographs were taken. (See Graves Direct at Tables 3-5, pp. 14-15.) The results of the model based oh Frank McCourt High School in Mаnhattan exemplified the findings of the simulations:
The average wait increases by three minutes if 20% of voters take photographs, by seven minutes if 50%, and by fifteen minutes if all voters take a photograph. Similarly the maximum wait time goes from 61 minutes to 67 minutes (20% take photographs), to 76 minutés (50%) and to 91 minutes (100%). Finally, the percent of voters with 30 minute or more waits increases from 49% to 54% (20% taking photographs), to 59% (50% taking photographs) and to 6.4% (100% taking photographs).
(Graves Direct at ¶ 47.)
The Court accepts that the' modelling utilized by Dr. Graves does not take account of all real world considerations present in voting in New York and utilizes some data developed in Michigan which may have its own distinguishing characteristics. But allowing for those considerations, the Court comfortably finds that permitting ballot photography at the polls would materially increase wait . times at New York City polling sites. The Court further finds, that a material increase in
DISCUSSION
I. First Amendment Standards.
The First Amendment, applicable to the states through the Fourteenth Amendment, states in relevant part that “Congress shall make no law ... abridging the freedom of speech '....” The protection the First and Fourteenth 'Amendments afford speech on property owned or controlled by the government depends on the forum in which that speech takes place. The level of scrutiny with which a court must view’ a state action restricting speech also depends on the kind of restrictions placed upon that speech.
A. Traditional Public and Government Designated Fora.
The First Amendment’s protection of speech is at its peak when that speech takes place in a traditional public forum, such as a public street or sidewalk. McCullen v. Coakley, - U.S. -,
A designated public forum, that is, a “government property that has not traditionally been regarded as a public forum,” but which has been “intentionally opened up for that purpose,” is subject to similarly strict limitations on the government’s ability to regulate speech as is a traditional public forum. Pleasant Grove City v. Summum,
Government restriction of speech based on the content of that speech in éither a traditional public forum or a designated public forum is subject to strict scrutiny. Perry Educ. Ass’n,
In these types of public fora, content-neutral government restrictions “on the time, place, or manner of protected speech” are permitted. Ward v. Rock Against Racism,
B. Limited Public Fora.
The government has more latitude to restrict speech in a limited public forum. “Public property which is not by tradition or designation a forum for public communication is governed by different standards.... [T]he ‘First Amendment does not guarantee access to property simply because it is owned or controlled by the government.’ ” Perry Educ. Ass’n,
C. Non-Public Fora.
“[P]roperty that the government has not opened for expressive activity by members of the public” constitutes a non-public forum. Hotel Emps. & Rest. Emps. Union, Local 100,
H. N.Y. Elec. Law § 17-130(10) Prohibits Ballot Selfies.
N.Y. Elec. Law § 17-130(10) provides that “[a]ny person who ... [s]hows his ballot after it is prepared for voting, to any person so as to reveal the contents ... is guilty of a misdemeanor.” The parties agree that the statute would be violated where a voter takes a photograph depicting the voter with his or her marked ballot and then posts the photograph to social media where it can be viewed by others. This interpretation is supported by the plain language of the statute and the purposes behind its passage.
One dictionary from 1806 defines “show” as “to exhibit to view ....” Noah Webster, Compendious Dictionary of the English Language 276 (1806). Another early nineteenth-century dictionary defines “show” as “[t]o exhibit to view; to give proof of, to prove; to make known; ... to tell.” John Walker, Critical Pronouncing Dictionary, and Expositor of the English Language 776 (1st Am. ed. 1803). A dictionary from the early twentieth century defines “show” as “[t]o exhibit or present to view; to place
The purpose of the statute, was to keep the perpetrators of election fraud from verifying their targets’ votes. Thus, the prohibition only applies to the display of a ballot “after it is prepared for voting.” N.Y. Elec. Law § 17-130(10). In practical terms, this means after the ballot has been marked with the voter’s choices and is ready to be cast or deposited in the manner designated by election officials. And the “showing]” of such a ballot is only prohibited when it is shown “to any person so as to reveal the contents.” N.Y. Elec. Law § 17-130(10). For example, showing the back of a marked ballot, or the front of a ballot with the markings obscured, is not prohibited by the statute.
Markings may be displayed by a photograph of the ballot as well as by the ballot itself. Photography existed decades before the law was enacted. More primitive methods of “show[ing]” a voter’s marked ballot also existed, including through the use of mirrors or other reflective surfaces. The legislature that enacted the statute would have known this and would have intended to prohibit the indirect showing of a marked ballot by photography or by mirror.
The Court concludes that the plain meaning of the language of the statute at the time it was enacted, the underlying purpose of the statute, and the likely intent of the legislature that enacted it all support the interpretation that the behavior in which plaintiffs wish to engage is prohibited.
III. N.Y. Elec. Law § 17-130(10) Survives Strict Scrutiny.
The First Amendment’s protection is at its apex with respect to political speech, and “ ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett,
[T]he right to vote freely for the candidate of one’s choice is of the essence of a democratic society. Indeed, no right is more precious in a free сountry than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.
Burson v. Freeman,
N.Y. Elec. Law § 17-130(10) is narrowly tailored to further a compelling state interest and thus survives strict scrutiny.
A. N.Y. Elec. Law § 17-130(10) Furthers a Compelling State Interest.
i. Burson.
“[A] State ‘indisputably has a compelling interest in preserving the integrity of its election process.’ ... In other words, ... a State has a compelling interest in ensuring that an individual’s right to vote is not undermined by fraud in the election process.” Burson,
In Burson, the Supreme Court upheld against a First Amendment challenge a Tennessee law that prohibited. certain campaign related speech, including the display of campaign materials, such as signs or posters, or the solicitation of votes for or against a person, political party, or position on a question, within 100 feet of the entrance to a polling site. Id. at 193-95,
A campaign-free zone around the polling site rеinforces secrecy in the voting bboth while also addressing concerns regarding vote buying, and voter intimidation in additional .ways; it does away with a potential marketplace for the sale of votes within the immediate vicinity of the polling, site and makes it more difficult for individuals to intimidate voters who are approaching the polling site or waiting in line. See id. at 202,
Though the Supreme Court in Burson did not directly face a challenge to the part of the Tennessee Australian ballot reforms that mandated secret ballots, the Supreme Court’s analysis made clear the necessity of the secret ballot to the reforms as a whole, which were necessary to remedy the evils of vote buying and voter coercion, which undermine the integrity of elections and which the state has a compelling interest to protect:
In sum, an examination of the history of election regulation in this country reveals a persistent battle against two evils: voter intimidation and election fraud. After an unsuccessful experiment with an unofficial ballot system, all 50 States, together with numerous other Western democracies, settled on the same solution: a secret ballot secured in part by a restricted zone around the voting compartments. We find that this widespread and time-tested consensus demonstrates that some restricted zone is necessary in order to serve the States’ compelling interests in preventing voter intimidation and election fraud.
Id. at 206; see also id. at 207-08,
ii. N.Y. Elec. Law § 17-130(10) was Designed to Combat Election Fraud.
The same concerns regarding, vote buying and voter intimidation that prompted the adoption of the Australian ballot reforms nationwide, as well as the enactment in 1890 of the specific Tennessee statute at issue in Burson, motivated the enactment of N.Y. Elec, Law § 17-130(10) that same year. The evidence at trial supports the conclusion that in New York, prior to the enactment of the statute, vote buying and voter intimidation were rampant. (Kellner Direct at ¶ 10.) Preventing these evils and upholding the integrity of New York’s elections is a compelling state interest.
After New York’s adoption of the Australian ballot reforms vote buying and voter intimidation' virtually disappeared. (Adler Direct at ¶ 15; Kellner Direct at ¶ 15.) Yet they did not disappear completely — a handful of vote buying schemes have been uncovered in the last several years. (Kellner Direct .at ¶ 16.) A federal prosecution in this district against the perpetrators of a vote buying scheme is still ongoing. (Kellner Direct at ¶ 16; State Defs.’ Exs. 6-7.)
The lack of evidence of widespread vote buying and voter intimidation in contemporary New York elections does not mean that the state no longer has a compelling interest in preventing these evils. See Burson,
N.Y. Elec. Law § 17-130(10) was adopted in substantially the same form 127 years ago and has been in effect ever since. Defendants are thus limited in their ability to present evidence of what’ would happen if the statute were stricken or its application limited to a person-to-person showing of a marked ballot. Defendants have convincingly demonstrated that secret ballots remain critical to combating vote buying and voter intimidation.
Plaintiffs urge this Court to follow Rideout v. Gardner, where the First Circuit, in upholding the district court’s injunction against the enforcement of a New Hampshire statute updated in 2014 to specifically prohibit the sharing via social media of a digital photograph of a marked ballot, found that the statute did not address an “actual problem in need of solving.”
B. N.Y. Elec. Law § 17-130(10) is Narrowly Tailored.
For the statute as аpplied to ballot selfies to survive strict scrutiny the state must demonstrate not only that the law serves a compelling state interest, but also that the law is narrowly tailored -to serve that interest. Reed,
Vote buying and voter intimidation are against the law. However, these crimes, in and of themselves, are very difficult to detect. (Kellner Direct at ¶ 13; Adler Direct at ¶¶ 5-6.) A key way to disrupt this kind of voter fraud is to prevent would-be vote buyers and intimidators from verifying their targets’ compliance. (Adler Direct at ¶ 6.) Viewing a photograph of an individual along with their marked ballot is an especially efficacious way to verify that the individual in the photograph voted consistent with the marked ballot in the photo, as such a photograph would .be more difficult to fake.
Plaintiffs argue that the statute is over-inclusive because it criminalizes the posting of photographs of marked ballots to social media by individuals who are not involved in a vote buying scheme or any other kind of votеr fraud. (Pis.’ Trial Brief, July 7, 2017, Dkt. 110 at 9.) Plaintiffs allege that the least restrictive means of upholding the state’s compelling interest in the integrity of elections is to criminalize vote buying and voter intimidation. (Id.) The Supreme Court rejected a similar argument with respect to the 100-foot restricted zone around polling sites in Burson, finding that “[ijntimidation and interference laws fall short of serving a State’s compelling interests because they deal with only the most blatant and specific attempts to impede elections.” Burson,
Next, plaintiffs argue that the statute does not effectively prevent vote buyers or intimidators from verifying their targets’ votes because photographs of marked ballots could be transmitted privately rather than posted publically, and these transmissions would be virtually impossible to detect. (Pis.’ Trial Brief, July 7, 2017, Dkt. 110 at 9.) Thus, plaintiffs argue, the prohibition on the display of a photograph of a marked ballot does not in any way prevent vote buying or voter intimidation beyond the criminal statutes prohibiting such behavior directly.
While at first glance it appears intuitive that an individual engaged in a vote buying scheme would not publically post a ballot selfiе on social media for fear of detection, closer examination reveals that in reality, the opposite is true. A vote buyer or voter intimidator who wishes to verify his targets’ votes is presented with a dilemma— the electronic transmittal of a photograph of a marked ballot will almost invariably
Plaintiffs ¡ further argue that a photograph of a marked ballot is not an efficacious way for a vote buyer or voter intimi-dator to verify his or her targets’ vote because the voter could take a photograph of a marked ballot at a polling place but then either change the markings on the ballot before submitting it or submit a different ballot entirely. (Pis.’ Post>-Trial Brief, September 11, 2017, Dkt. 138 at 3.) However, evidence at trial indicated that while a Voter could photograph a marked ballot and then not submit that ballot, they would be unable to change the markings on the ballot or submit a different ballot without the vote buyer or intimidator finding out. Erasing the markings on the ballot would likely "invalidate the ballot. (Tr. 49-50.) A voter may, however, obtain a new ballot if the original ballot is spoiled. (Tr. 49.) But the fact that a voter received a new ballot in this way would be noted in publically available records. (Tr. 51-52.) By checking these records to confirm that the target had not received a new ballot in this way, a vote buyer or intimidator could •be sure that the target either cast a vote consistent with the ballot markings displayed in the ballot selfie or did not submit a ballot at all.
Plaintiffs put forth no alternative that would be as effective in restricting the ability of individuals or entities who would commit election fraud from ensuring that their targets complied with their instructions, and the Court is aware of none. As described, any law prohibiting only the posting to social media of photographs of marked ballots for fraudulent purposes would allow the posting of marked ballots in general to proliferate, thus giving cover to those who would use these photographs to fraudulently alter elections.
C. Social Coercion.
N.Y. Elec. Law § 17-130(10) is narrowly tailored to serve the compelling government interest of preventing vote buying and voter intimidation, and thus survives strict scrutiny. Separately, though not unrelatedly, the law is narrowly tailored to serve the compelling government interest in maintaining the integrity of the election process by preventing employers and other groups and organizations from exercising more subtle forms coercion on their members to enforce orthodoxy in voting.
Defendants argue that the potential for. coercion by employers, unions, and other groups represents a serious threat to the integrity of elections in New York. (State. Defs.’ Trial Brief, July 28, 2017, Dkt. 126 at 19.) Such coercion, they argue, is difficult to address through laws that prohibit
Employers and other organizations have many ways of - enforcing various kinds of orthodoxy among their employees and members. Currently, an employer or group’s .power to enforce political orthodoxy among its members ends at the entrance to the voting booth. Without the prohibition on displaying a photograph of one's marked ballot, the protection gained from secret voting will disappear, and employers, unions, political groups, or religious organizations will be able to pressure individual members to produce photographs of ballots marked in support of the organization’s preferences, or face suspicion that the person has acted in an unorthodox manner. (See Adler Direct at ¶¶ 36, 39.)
This social pressure that could' be brought to bear could be both direct and indirect, subtle and open. Members could be pressured to produce such photographs in private, to management, or leaders of the organization, or to post them publieally on a group social media page. For many voters, ballot secrecy must be required by law for voting in secret to even be an option.
Easy cases, such as an employer firing an employee for failure to post may be reached by a narrower law. But private associations and groups would be much harder to police. More subtle sanctions, such as the disapprobation of other individuals in the organization, or the possibility of being shunned by group members, or even entire communities, would be difficult to. address. The state has a compelling interest in ensuring that citizens are allowed to vote their conscience. Secrecy in voting allows the voter to engage in the act of voting free from the judgement of others.
IV, N.Y. Elec. Law § 17-130(10) is- a Permissible Content-Based Bestric- - tion of Speech in a Non-Public Forum.
In the alternative, the Court finds that the New York statute is a pérmissible content-based restriction of speech in a non-public forum.
A. NY. Elec. Law § 17-130(10) is a Conteni>-Based Restriction.
The Court finds that the challenged statute regulates speech based on its content, as it “applies to particular speech because of the topic discussed or the idea or message expressed.” Reed,
Because the'.statute prohibits showing another person one’s marked ballot, regardless of the contents, it is viewpoint neutral. It is neutral with respect to subject .matter, at least in a narrow sense, because the law does not distinguish between ballots marked with respect to candidates
Though cognizant of the ambiguity that remains in the. wake, of Reed regarding how broadly or. narrowly courts must -,interpret the subject matters between which a government speech restriction distinguishes, the Court concludes that the statute restricts speech on. the basis of its content.
• B. Strict Scrutiny does not apply to all Content-Based Speech Restrictions.
Plaintiffs argue that Reed overturned Supreme Court precedent regarding forum analysis and thus all content-based restrictions of speech must be subjected to strict scrutiny. (Pis.’ Trial Brief, July 7, 2017, Dkt. 110 at 2.) While the Supreme Court did state in Reed that “[c]ontent-based laws ... may be justified only if the government proves thát they are narrowly tailored to serve compelling state interests,”
First, Reed dealt with a municipal code that restricted the display of outdoor signs “anywhere within the town,” including on private property. Id at 2224. Thus traditional forum analysis, which relates, to property owned or controlled by the government, was inapplicable.
Second, in Walker v. Tex. Div., Sons of Confederate Veterans, Inc., — U.S. -,
C. Polling Sites are Non-Public Fora.
To determine- the type of forum in which speech takes place, courts “examine the forum’s physical characteristics and the context of the property’s use, including its location and purpose.” Hotel Emps. & Rest. Emps. Union, Local 100,
Polling sites in New York are located on both public and private property, including schools, buildings owned by religious organizations, and other privately owned buildings that are exempt from taxation or whose owner has received certain tax exemptions, subsidies, or loans from a municipality or state agency. N.Y. Election L. § 4-104. Expressive activities have been restricted at polling sites in New York since the adoption of the Australian ballot reforms in 1890. See N.Y. L. 1890, Ch. 262 § 35 (“No person shall do any electioneering on election day within any polling place, or in any public street or room, or in any public manner, within one hundred and fifty feet of any polling place.”); compare with N.Y. Elec. Law § 17-130(4) (“Any person who ... [electioneers on election day or on days of registration within one hundred feet ... from a polling place ... is guilty of a misdemeanor.”); see also N.Y. Elec. Law § 17-130(9) (“Any person who ... [h]aving lawfully entered a voting booth with a voter, requests, persuades or induces such voter to vote any particular bаllot or for any particular candidate ... is guilty of a misdemeanor.”).
Polling sites in New York are used only temporarily, and only for the specific purpose of allowing voters to cast ballots. (See Ryan Direct at ¶¶ 13-15; City Defs.’ Ex. 2 (no eating, drinking, pets, smoking, or photography are allowed at polling sites).) Poll workers are required to keep polling sites peaceful and quiet. (Pis.’ Ex. F, City Board’s Basic Poll Worker Manual for 2017/2018 at 4.) Poll workers are instructed not to discuss “[candidates or issues on the ballot; topics related to the ethnicity, culture, religion and gender of a Poll Worker, voter, or any other person at the Poll Site.” (Id.)
Because polling sites are opened by the government only for the specific purpose of enabling voters to cast ballots and are not historically open for public debate or speech generally, and the necessary limits on speech within polling sites to ensui’e orderly and efficient elections, the Court concludes that they are non-public fora. Other courts that have addressed this question agree with this assessment. See Marlin v. D.C. Bd. of Elections & Ethics,
It is true that voters could take a photograph of themselves with their marked ballots at the polling site and then upload that photograph to social media once outside the polling site, say, in Times Square, a quintessential traditional public forum, or in the privacy of their own home.- But the posting of a photograph of a marked ballot to social media requires two steps: the taking of the photograph and the electronic transmission of that photograph. Because the first step must take place in a non-public forum and the second step may take place in a nonpublic forum, it is appropriate to assess the impact of the statute as a restriction of speech taking place in a non-public forum.
Certain federal statutes, like this state statute, restrict types of speech- that often, or always, must occur partially in a nonpublic forum and partially1 outside of one. For example, 18 U.S.C. § 797 subjects to imprisonment and fine anyone who, under certain circumstances, “reproduces, publishes, sells, or gives away any photograph, sketch, picture,1 drawing, map, or graphical representation of [ ] vital military or naval installations or equipment.” A plain reading of this statute indicates that someone who took photographs of equipment on a military base, a non-public forum, and then displayed them or uploaded them to social media off of the military base, would be in violation of the statute. The Court is aware of no precedent suggesting that this statute is subject to lesser scrutiny where such a display or disclosure occurs in a public forum. The same goes for the law prohibiting the disclosure of classified information (18 U.S.C. § 798) and the law prohibiting the disclosure of the contents of a wiretap (18 U.S.C. § 2511(l)(c))‘.
D. Ballots are not Themselves Public Fora.
The Supreme Court has held that ballots themselves are not public fora:
We are unpersuaded, however, by the Party’s contention that it has a right to use the ballot itself to send a particularized message, to its candidate and to the voters, about the nature of its support for the candidate. Ballots serve primarily to elect candidates, not as fora for political expression.
Timmons v. Twin Cities Area New Party,
The State of New York has historically regulated how voters may mark a ballot and controlled possession of the ballot itself. See N.Y. L. 1890, Ch. 262 § 35 (“No person shall remove any official ballot from any polling place before the closing of the polls ... No voter shall receive an official ballot from any other person than one of the ballot clerks having charge of the ballots, nor shall any person other than such ballot clerks deliver an official ballot to such voter. No voter shall place any mark upon his ballot by means of which it can be identified as the one voted by him.”) For ballots not marked at polling sites, the State of New York heavily regulates the process by which they are sent to the voter, marked, and returned. See N.Y.
Ballots in the state of New York are not public fora. They are used by the state for the sole purpose of allowing the voter to record their vote in a form in which it can be tabulated by the appropriate election officials.
E. N.Y. Elec. Law § 17-130(10) is Reasonable and Viewpoint Neutral.
The statute is viewpoint neutral. It prohibits showing another person a marked ballot regardless of the contents of that ballot. The restriction is a reasonable measure to combat vote buying and voter coercion. It is thus an acceptable state restriction of speech taking place in a nonpublic forum and does not contravene the First or Fourteenth Amendments. Even if polling sites or ballots were considered limited public fora, the result would be the same, as posting photographs of marked ballots to social media is-“outside the limited category of speech for which the forum has been opened,” whatever that category of speech may be. Hotel Emps. & Rest. Emps. Union, Local 100,
Plaintiffs argue that ballot selfies are “uniquely compelling” political messages, partly because messages conveyed with both words and images are more powerful than messages conveyed with words alone, and partly because a ballot selfie has “unique credibility,” and that the expressive value of this manner of speech weighs in favor of striking down the law. (Brezler Direct at ¶¶ 9, 13, 16.) There is no doubt that a ballot selfie is a potent form of speech in that it sends a strong message that the individual in the photograph submitted the marked ballot depicted in the photograph. They are incontrovertibly unique. But other forms of visual display of candidate support may be as compelling or. nearly as compelling without the attendant dangers outlined herein.
V. The City Board’s No Photography • Policy.
A. The .City Board has Authority .under State Law to Prohibit Photography at Polling Sites.
Plaintiffs first argue that the City Board lacked the authority under state law to enact the no photography policy. (Pis.’ Trial Brief, July 7, 2017, Dkt. 110 at 12.) State law provides for the creation of the City Board. N.Y. Elec. Law § 3-200(1). The City Board has the authority to appoint election inspectors and poll clerks, and election inspectors are required to follow
Plaintiffs further argue that the policy is improper because it has not been reduced to writing and no record of its enactment was produced at trial. However, the Court finds based upon the testimony and exhibits at trial that the City Board has established a policy prohibiting photography except by accredited members of the press that has been in existence for over 20 years. Poll workers receive training regarding the signs informing voters of the policy. Plaintiffs do not make any arguments regarding insufficient notice of the policy, and Director Ryan testified that multiple no photography signs are put up at every polling site. If plaintiffs wish to challenge the sufficiency of the administrative procedures whereby this policy was enacted, this is not the proper action to present the challenge.
B. The No Photography Policy is Content-Neutral.
Photographs are protected by the First Amendment. Bery v. City of New York,
Photography is not permitted in polling sites in New York City. This is the case regardless of what is being photographed. This policy prevents equally a photograph of a ballot, a photograph of another voter, or a photograph of the wall. It is thus content-neutral. The policy regulates the medium, rather than the content, of expression.
The City Board’s no photography policy does not contravene the First Amendment. Polling sites are non-public fora and the policy is a reasonable, viewpoint-neutral restriction to maintain order at polling sites and decrease wait times. Cf. Westmoreland v. CBS,
Based upon the evidence presented at trial, the Court finds that the policy, was adopted to 1) protect voter privacy; 2) minimize disruptions of the electoral process; 3) increase efficiency at polling sites; 4) prevent students under the age of 18 from being photographed in violation of New York City Department of Education Policy; and 5) hinder the production of
Common sense teaches that for many voter-photographers, taking a ballot selfie will take much longer than the 18 seconds assumed by Dr. Graves. Some voters will require multiple photographs to capture their ballot along with themselves in different poses, or repeated photographs where the original was inadequate due to deficient fighting, disheveled hair, or misplaced accessories. Some voters, unaccustomed to using the camera on their phones, will struggle to activate, and then use, the camera functionality. Others will have to orchestrate a different photograph for each of their various apps.
The no photography policy is narrowly tailored because nothing short of a complete ban on photography by voters at polling sites would address these concerns. Prohibiting only photography that takes an unreasonably long time would not be efficacious because many individuals taking even a marginally increased time to vote can combine to cause substantially increased wait times. (See Graves Direct at Tables 3-5, pp. 14-15.) It would be unreasonable to expect poll workers, already responsible for numerous tasks on Election Day, to monitor the length of time it takes voters to take photographs. It would be virtually impossible to prevent inadvertent photographs of minors or other individual’s ballots with anything short of a full photography ban.
The no photography policy leaves open ample alternative means by which voters can signal their support for a candidate. Voters can still post to social media (using messages that contain both words and images), attend rallies, donate to campaigns, volunteer, or express their views in a multitude of ways without taking photographs at polling sites. The exception for members of the press who obtain credentials ensures that the public record does not become completely devoid of photographs оf the interior of polling sites.
The City Board’s no photography policy is thus consistent with the First Amendment regardless of what type of forum polling sites are considered.
VI. State Law Claims.
Plaintiffs also bring a claim under the New York State Constitution. Pursuant to 28 U.S.C. § 1367, federal courts may exercise supplemental jurisdiction “to hear state law claims that are so related to federal question claims brought in the same action as to ‘form part of the same case or controversy under Article III of the United States Constitution.’” Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc.,
CONCLUSION
Because plaintiffs have failed to show that N.Y. Elec. Law § 17-130(10) or the City Board’s no photography policy abridge their rights under the First and Fourteenth Amendments, their claims are dismissed. The Clerk is directed to enter judgment for the defendants and close the case.
SO ORDERED.
Notes
. Defendants contend that plaintiff Nabavien, as a permanent resident of a foreign country, would vote by "special federal ballot” rather than by absentee ballot. (City Defs.' Trial Brief, July 28, 2017, Dkt. 122 at 12 n.4.) Because plaintiffs have withdrawn all claims regarding photographs of ballots not voted at a polling site, the Court construes any challenge regarding photographs of special fеderal ballots to be withdrawn.
. At the Court’s direction, direct testimony of witnesses was presented by each side in written form, subject to live cross-examination and redirect.
. Commissioner Zaccone was appointed to fill Commissioner Grey's seat upon her resignation and was automatically substituted as a defendant. Rule 25(d), Fed. R. Civ. P.
. Apps, like Snapchat, which are designed to transmit photographs that are available to the receiver for only a period seconds before being permanently deleted and leave a very limited record, if any, regarding images sent or received, normally inform the sender or receiver of the image if the other party takes a screenshot. Taking a screenshot and sharing ■ Snapchat snaps without consent is illegal in the UK, N.Y. Daily News (May 29, 2016), available at http://www.nydailynews.com/ news/world/illegal-screenshot-share-snapchat-snaps-uk-article-1.2581553. However, this functionality can be easily defeated by either taking a photograph of the screen with a different camera, or taking a screenshot and quickly activating the phone's airplane mode. Id.
. The Court’s finding that permitting ballot selfies would materially increase wait time at the polls, and that this would suppress voter turnout, applies with equal force to the Court’s conclusion that N.Y. Elec. Law § 17— 130(10) is a reasonable restriction on speech in a non-public forum. In addition to preventing election fraud, the statute is a reasonable measure to decrease wait times at polling sites, as well as to maintain order and efficiency therein.