Silberberg et al v. Board of Elections of the State of New York et al
MEMORANDUM AND ORDER: The State of New York has a compelling interest in preventing vote buying and voter coercion. The States interest in the integrity of its elections is paramount. The law is also narrowly tailored, for a law prohibiting the di splay 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 po licy prohibiting photography is not a content-based restriction and is not in tension with the First Amendment. This policy is narrowly tailored to address significant state interests, such as avoiding longer wait times at the polls. Narrower rest rictions are unlikely to be effective. 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. (As further set forth in this Order.) (Signed by Judge P. Kevin Castel on 9/28/2017) (cf)
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 1 of 41
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EVE SILBERBERG, JENNIFER REBECCA
WHITE, and MICHAEL EMPEROR,
BOARD OF ELECTIONS OF THE STATE OF
NEW YORK, CO-CHAIRS PETER S.
KOSINSKI and DOUGLAS A. KELLNER,
COMMISSIONERS ANDREW J. SPANO and
GREGORY P. PETERSON; BOARD OF
ELECTIONS OF THE CITY OF NEW YORK
PRESIDENT MARIA R. GUASTELLA,
SECRETARY FREDERIC M. UMANE, and
COMMISSIONERS JOSE MIGUEL ARAUJO,
JOHN FLATEAU, PH.D., LISA GREY,
MICHAEL MICHEL, MICHAEL A. RENDINO,
ALAN SCHULKIN, SIMON SHAMOUN,
ROSANNA VARGAS; NEW YORK COUNTY
DISTRICT ATTORNEY’S OFFICE, DISTRICT
ATTORNEY CYRUS VANCE; KINGS
COUNTY DISTRICT ATTORNEY’S OFFICE,
DISTRICT ATTORNEY ERIC GONZALEZ,
CASTEL, Senior District Judge:
These 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
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 2 of 41
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 . . . [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 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
scrutiny. 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
and is not in tension with the First Amendment. This policy is narrowly tailored to address
significant state interests, such as avoiding longer wait times at the polls. Narrower restrictions
are unlikely to be effective.
Judgment will be entered for the defendants.
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 3 of 41
BACKGROUND and EVIDENCE
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. I, § 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
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 4 of 41
consented to the withdrawal of all claims regarding photographs of absentee ballots or other
ballots not voted at polling sites. (Tr. 39-40.) 1
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
¶¶ 3-5.) 2
Ms. Brezler, who has worked on numerous political campaigns in New York,
specializes in digital activism and grassroots organizing. (Direct Testimony of Katherine
Brezler, July 7, 2017, Dkt. 110-6 (“Brezler Direct”) at ¶¶ 5-7.) Ms. Brezler testified that, based
on her experience, “[s]ocial media has become a critical organizing tool,” used by “[m]ost
candidates for competitive political campaigns on state and federal levels,” and that “[s]ocial
media is a more effective medium today than television and print media to reach people with a
political message.” (Brezler Direct at ¶ 8.) Ms. Brezler testified to the importance of grassroots
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 federal 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.
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 5 of 41
social media activism and her belief that messages on social media conveyed with both words
and images are more powerful than messages conveyed with words alone. (Brezler Direct at ¶¶
9, 13.) Ms. Brezler testified that many people do in fact take photographs of marked ballots at
New York City polling sites and post those photographs to social medial. (Brezler Direct at ¶
14.) She believes that a photograph of an individual’s marked ballot posted to social media is a
“uniquely compelling” message with “unique credibility.” (Brezler Direct at ¶ 16.) Ms. Brezzler
opined that a ballot selfie was an effective way to convince people to vote for a certain candidate.
(Brezler Direct at ¶ 16; Tr. 24.)
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 Kosinski, 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.
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.
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 6 of 41
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 ballot voting, the government did not print ballots. (Kellner Direct at ¶ 8.) Voters either cut
ballots out of newspapers or obtained printed ballots distributed near polling sites by candidates’
partisan supporters, which listed the names of the partisan’s favored candidates. (Kellner Direct
at ¶ 8.) Due to the design of these ballots, an observer could tell for whom the individual was
voting by watching the voter place the ballot in the ballot box. (Kellner Direct at ¶ 9.) An 1880
law attempted to remedy this problem by requiring uniform-style ballots on white paper.
(Kellner Direct at ¶ 9.) This measure was unsuccessful as partisans were able to print ballots in
different shades of white paper, thereby maintaining their ability to observe which candidates’
ballot a voter placed in the ballot box. (Kellner Direct at ¶ 10.) In the era of distinguishable
ballots, bribing and intimidating voters was commonplace, because a voter’s choice could be
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 7 of 41
verified by observing the physical characteristics of the ballot he deposited in the ballot box.
(Kellner Direct at ¶ 10.)
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 was 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 150 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, whereas 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 of 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
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 8 of 41
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.)
According to Co-Chairman Kellner, the laws prohibiting vote buying and voter
coercion would be more difficult to enforce without a prohibition on the display of a marked
ballot. (Tr. 47-48.) However, even without such a law, a vote buyer still faces obstacles in
verifying his target’s compliance. For example, a voter may obtain a new ballot if his or her
original ballot is “spoiled.” (Tr. 49.) A voter can receive up to three additional ballots this way.
(Tr. 49.) So it would be possible for a voter targeted by bribery or intimidation to mark a ballot,
photograph it, then spoil that ballot and then mark and submit a new ballot. (Tr. 49.) But voters
who receive additional ballots through this process are noted in the “registration book,” which is
available for review by the public. (Tr. 51-52.) Thus, a voter trying to double-cross a vote buyer
could be caught. A voter who sold his vote could erase the marking on a ballot after
photographing it, then mark different selections. But, according to the testimony of CoChairman Kellner, this would likely invalidate the ballot. (Tr. 49-50.)
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
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 9 of 41
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.)
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 19thcentry 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 adopted 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.)
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 10 of 41
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 their fraudulent schemes
to monitor their targets’ votes; such individuals devised various verification methods such as
bribing corrupt election officials, recording a voter’s selection on carbon-copy paper, marking
ballots with identifiable patterns, accompanying voters into the voting booth under the pretense
that the voter was illiterate, and switching ballots filled out in the presence of the vote buyer with
ballots provided at the polling site. (Adler Direct at ¶ 23.)
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.)
- 10 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 11 of 41
Allowing ballot selfies would likely negatively impact voter participation by
increasing wait times at polling sites. (Adler Direct at ¶ 57.) Ten 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, 3 Michael Michel, Robert
Siano, Alan Schulkin, Simon Shamoun, and Rosanna Vargas), New York County District
Attorney Cyrus Vance, Acting Kings County District Attorney Eric Gonzalez, and their
respective offices. The City Defendants called two witnesses: Michael Ryan, the Executive
Director of the City Board, and Professor Stephen Graves.
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.
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
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.
- 11 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 12 of 41
authorization from the City Board and met certain requirements. (Ryan Direct at ¶ 3.) The
policy was adopted to 1) protect voter privacy; 2) minimize disruptions of the electoral process;
3) increase efficiency at polling sites; and 4) prevent students under the age of 18 from being
photographed in violation of New York City Department of Education Policy. (Ryan Direct at ¶
4.) Since the introduction of paper ballots and scanners at polling sites, the policy also acts to
prevent individuals from leaving the polling sites with a photograph of a ballot, creating
reproductions of the ballot, and then returning to that polling site to cast counterfeit ballots.
(Ryan Direct at ¶ 5.)
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.)
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
- 12 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 13 of 41
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. (Graves 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 the 2016
general election, including the number of votes cast by hour by borough, the number of votes
cast at each sample polling site, and the number of privacy booths and scanners used at each of
- 13 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 14 of 41
those sites. (Graves Direct at ¶¶ 31-32.) The model approximated voter arrival times at the
polling sites by simulating random arrivals, one at a time. (Graves Direct at ¶ 34.) The
simulation assumed that the time each voter took to vote, measured as the time between when the
voter first occupies the privacy booth and when the next voter could occupy the privacy booth, as
three minutes. (Graves Direct at ¶ 36.) This estimation was partially based upon measurements
made by Professor Charles Steward of voting times in Michigan for the 2016 general election.
(Graves Direct at ¶ 36.) The model assumes that the time it takes to take a photograph while
voting is 18 seconds, based on measurements made by Professor Stewart. (Graves Direct at ¶
Dr. Graves ran several simulations with his model with different variables for the
proportion of voters 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 estimated
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 run a number of times and wait times were averaged
for each sample polling site and for each alternative percentage of voters taking photographs.
- 14 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 15 of 41
(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 on Frank
McCourt High School in Manhattan 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
minutes (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
64% (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 wait times would likely suppress voter turnout in certain areas of New York
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.
- 15 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 16 of 41
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,
134 S. Ct. 2518, 2529 (2014). “[T]he government’s ability to restrict speech in such locations is
‘very limited.’” Id. (quoting United States v. Grace, 461 U.S. 171, 177 (1983)). The label of
traditional public forum encompasses “places which by long tradition or by government fiat have
been devoted to assembly and debate.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460
U.S. 37, 45 (1983). “In short, traditional public fora are areas that have historically been open to
the public for speech activities.” McCullen, 134 S. Ct. at 2529.
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, 555 U.S. 460, 469-70
Government restriction of speech based on the content of that speech in either a
traditional public forum or a designated public forum is subject to strict scrutiny. Perry Educ.
Ass’n, 460 U.S. at 45; Pleasant Grove City, 555 U.S. at 469-70. “Government regulation of
speech is content based if a law applies to particular speech because of the topic discussed or the
idea or message expressed.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015). Strict
scrutiny applies when the government regulation either “defin[es] regulated speech by particular
subject matter,” or “by its function or purpose,” as “[b]oth are distinctions drawn based on the
- 16 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 17 of 41
message a speaker conveys.” Id. Such restrictions “are presumptively unconstitutional and may
be justified only if the government proves that they are narrowly tailored to serve compelling
state interests.” Id. at 2226. The narrow tailoring requirement is met only where “the challenged
regulation is the least restrictive means among available, effective alternatives.” Ashcroft v.
ACLU, 542 U.S. 656, 666 (2004).
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, 491 U.S.
781, 791 (1989). Such restrictions are consistent with the First Amendment if they are “narrowly
tailored to serve a significant governmental interest.” McCullen, 134 S. Ct. at 2529. They “need
not be the least restrictive or least intrusive means of” achieving those interests so long as they
“leave open ample alternative channels for communication of the information.” Ward, 491 U.S.
at 791, 798. In other words, “the requirement of narrow tailoring is satisfied ‘so long as the . . .
regulation promotes a substantial government interest that would be achieved less effectively
absent the regulation.’” Id. at 799 (quoting United States v. Albertini, 472 U.S. 675, 689 (1985))
(omission in original).
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, 460
U.S. at 46 (quoting United States Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S.
114, 129 (1981)). A limited public forum “exists where the government opens a non-public
forum but limits the expressive activity to certain kinds of speakers or to the discussion of certain
- 17 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 18 of 41
subjects.” Hotel Emps. & Rest. Emps. Union, Local 100 v. City of New York Dep’t of Parks &
Rec., 311 F.3d 534, 545 (2d Cir. 2002) (internal quotation marks omitted). In such a forum, the
“government is free to impose a blanket exclusion on certain types of speech, but once it allows
expressive activities of a certain genre, it may not selectively deny access for other activities of
that genre.” Id. at 545-46. As to speech that the government does permit outside the limited
category of speech for which the forum was created, “restrictions need only be viewpoint neutral
and reasonable.” Id. at 546.
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, 311 F.3d at 546 (non-public fora include airport terminals, military bases, jails, and
certain sports complexes). “The government may restrict speech in non-public fora subject only
to the requirements of reasonableness and viewpoint neutrality.” Id. Such restrictions must not
be “an effort to suppress a speaker because of a disagreement with that person’s views.” Longo
v. United States Postal Serv., 983 F.2d 9, 12 (2d Cir. 1992).
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.
- 18 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 19 of 41
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 in sight; to display.” Webster’s New
International Dictionary 1948 (W. T. Harris & F. Sturges Allen, eds. 1930). Contemporary
dictionaries define “show” as “to cause or permit to be seen . . . .” Webster’s Third New
International Dictionary of the English Language Unabridged 2105 (1961). A reasonable person
would understand that posting a photograph of one’s ballot on social media would be to present,
exhibit, or display the ballot in a manner so that it may be viewed or seen by another person.
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 “show[ing]” 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
- 19 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 20 of 41
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
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, 564 U.S. 721, 734
(2011) (quoting Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 223
[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 country 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
Burson v. Freeman, 504 U.S. 191, 209 (1992) (plurality opinion) (internal citation and quotation
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.
“[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
- 20 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 21 of 41
individual’s right to vote is not undermined by fraud in the election process.” Burson, 504 U.S.
at 199 (quoting Eu, 489 U.S. at 231). A state has a further compelling interest in “protecting
voters from confusion and undue influence.” Id. As a result, the Supreme Court has upheld
against First Amendment challenges “generally applicable and evenhanded restrictions that
protect the integrity and reliability of the electoral process itself.” Id.
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. This statute, first enacted in slightly different form in 1890, was intended to combat the
same evils that the 1890 New York statute was intended to combat; vote buying and voter
intimidation. Id. at 200-05.
A campaign-free zone around the polling site reinforces secrecy in the voting
booth 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 (The Supreme Court described
approaching a polling site before passage of the law as “akin to entering an open auction place. .
. . Sham battles were frequently engaged in to keep away elderly and timid voters of the
opposition.”). However, the Supreme Court in Burson emphasized that the Tennessee law in
question was only one piece of the Australian ballot reforms in that state, which also included
secret, standardized ballots. Id. at 206. The Court noted that these provisions worked in tandem
to combat voter fraud. Id.
- 21 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 22 of 41
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 (“[T]he link between ballot secrecy and some restricted zone
surrounding the voting area is not merely timing – it is common sense. The only way to preserve
the secrecy of the ballot is to limit access to the area around the voter.”). The Supreme Court
specifically noted the arguments put forth at the time of the Australian ballot reforms in favor of
secret ballots, acknowledging how secret ballots would combat vote buying and voter
intimidation: “Another argument strongly urged in favor of the reform was that it would protect
the weak and dependent against intimidation and coercion by employers and creditors. The
inability to determine the effectiveness of bribery and intimidation accordingly would create
order and decency at the polls.” Id. at 203. There can be no doubt that the state’s interest in
preventing vote buying and voter intimidation through ensuring the secrecy of the ballot is a
- 22 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 23 of 41
N.Y. Elec. Law § 17-130(10) was Designed to Combat Election
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 § 17130(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.
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, 504 U.S. at 208 (“the long, uninterrupted, and
prevalent use of these statutes makes it difficult for States to come forward with the sort of proof
the dissent wishes to require”). As the Supreme Court has observed, “it is difficult to isolate the
exact effect of these laws on voter intimidation and election fraud. Voter intimidation and
election fraud are successful precisely because they are difficult to detect.” Id.
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
- 23 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 24 of 41
evidence of what would happen if the statute were stricken or its application limited to a personto-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.” 838
F.3d 65, 68, 72 (1st Cir. 2016) (internal quotation marks omitted). In that case, decided on
summary judgment, virtually no specific evidence was presented regarding vote buying or voter
intimidation in New Hampshire. Id. at 73. In the present case, ample evidence has been
presented regarding vote buying and voter intimidation in New York, both historic and
contemporary. And New Hampshire is not New York City. New York elections were bought
and sold for decades before the introduction of the Australian ballot reforms. The statute was an
appropriate response to the political corruption in New York in 1890 and is a valid measure
today to prevent that history from repeating itself.
B. N.Y. Elec. Law § 17-130(10) is Narrowly Tailored.
For the statute as applied 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, 135 S. Ct. at 2226. To make this showing, the
state must “prove that the proposed alternatives will not be as effective as the challenged
statute.” Ashcroft, 542 U.S. at 665. Because speech must not be restricted further than
necessary to achieve the state’s interest, the statute must be “the least restrictive alternative that
can be used to achieve that goal.” Id. at 666. In other words, the statute will be struck down if
- 24 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 25 of 41
the government does not prove that “the challenged regulation is the least restrictive means
among available, effective alternatives.” Id.
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 overinclusive 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 voter fraud. (Pls.’ 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 “[i]ntimidation 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, 504 U.S. at 206-07 (internal quotation marks omitted). Likewise, history
and common sense teach that prohibiting vote buying and voter intimidation are unlikely to be a
particularly effective means to combat these evils so long as the perpetrators may verify their
target’s votes. It was in fact the failure of such laws that prompted the Australian ballot reforms
in the first place. (Kellner Direct at ¶¶ 10, 12.)
- 25 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 26 of 41
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. (Pls.’ 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 selfie 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 leave some sort of electronic record. 4 In
order to eliminate an electronic trail, the perpetrator might command that the photograph be
posted to social media, where anyone can see it. Using this tactic, the perpetrators of election
fraud would leave virtually no evidence of their misdeeds and authorities would have little hope
of apprehending them, especially in the likely event that posting ballot selfies increases in
popularity absent this law.
Plaintiffs further argue that a photograph of a marked ballot is not an efficacious
way for a vote buyer or voter intimidator 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. (Pls.’ Post-Trial Brief,
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
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.
- 26 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 27 of 41
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. 5152.) 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.
- 27 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 28 of 41
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 threating to inflict harm or loss on a voter to influence voting behavior. (Id. at
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 publically on a group social media
page. For many voters, ballot secrecy must be required by law for voting in secret to even be an
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
- 28 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 29 of 41
conscience. Secrecy in voting allows the voter to engage in the act of voting free from the
judgement of others.
N.Y. Elec. Law § 17-130(10) is a Permissible Content-Based Restriction of Speech in
a Non-Public Forum.
In the alternative, the Court finds that the New York statute is a permissible
content-based restriction of speech in a non-public forum.
A. N.Y. Elec. Law § 17-130(10) is a Content-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, 135 S. Ct. at 2227. Even after Reed clarified that speech restrictions are
content based even when they are neutral with regards to ideas or viewpoints, so long as they
discriminate based on subject matter, there remains disagreement over the scope of the ruling.
See Reed, 135 S. Ct. at 2233 (Alito, J., concurring) (“Rules imposing time restrictions on signs
advertising a one-time event . . . do not discriminate based on topic or subject and are akin to
rules restricting the times within which oral speech or music is allowed.”); Reed, 135 S. Ct. at
2237 n.* (Kagan, J., concurring) (arguing that restrictions on signs advertising one-time events
would be considered content-based under the majority’s reasoning); Act Now To Stop War &
End Racism Coal. v. District of Columbia, 846 F.3d 391, 403 (D.C. Cir. 2017) (finding speech
restriction distinguishing between event-related signs and signs not related to an event content
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 or with respect to ballot initiatives or referenda. It distinguishes between ballots
- 29 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 30 of 41
that are marked and those that are not. The law’s effect is essentially to prohibit individuals from
using the medium of a marked ballot for expressive conduct. The law does not prohibit showing
another an unmarked ballot, regardless of what additional communicative content is included; it
does not, for example, prohibit sharing a photograph of an unmarked ballot with a message
written on it.
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.
(Pls.’ 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 that they are narrowly
tailored to serve compelling state interests,” 135 S. Ct. at 2226, reading this language in the
context of the case, and in view of more recent circuit court decisions, this Court concludes that
the forum analysis traditionally required in evaluating First Amendment challenges remains
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., 135 S. Ct.
2239, 2250 (2015), decided the same day as Reed, the Supreme Court discussed forum analysis
- 30 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 31 of 41
in dicta, but ultimately found such analysis inapplicable after holding that the speech in question
was government speech. In Johnson v. Perry, 859 F.3d 156, 171 (2d Cir. 2017), the Second
Circuit applied forum analysis in the context of evaluating a First Amendment free assembly
claim. Other circuit courts since Reed have applied less than strict scrutiny to content-based
restrictions of speech in limited public or non-public fora. See Heaney v. Roberts, 846 F.3d 795,
801-02 (5th Cir. 2017); Ball v. City of Lincoln, No. 16-3210, 2017 U.S. App. LEXIS 16472, at
*25-26 (8th Cir. Aug. 29, 2017); Reza v. Pearce, No. 13-15154, 2015 U.S. App. LEXIS 20120,
at *13-14 (9th Cir. Nov. 19, 2015); Celebrity Attractions, Inc. v. Okla. City Pub. Prop. Auth.,
660 F. App’x 600, 605-06 (10th Cir. 2016).
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, 311 F.3d at 547. “The primary factor
in determining whether property owned or controlled by the government is a public forum is how
the locale is used. Also relevant is the government’s intent in constructing the space and its need
for controlling expressive activity on the property, as evidenced by its policies or regulations.”
Id. (internal citation and quotation marks omitted). A court also considers “whether the property
in question is part of a class of property which by history or tradition has been open and used for
expressive activity.” Id. (internal quotation marks omitted).
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
- 31 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 32 of 41
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 . . . [e]lectioneers 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 ballot 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. (Pls.’ Ex. F, City Board’s Basic Poll Worker
Manual for 2017/2018 at 4.) Poll workers are instructed not to discuss “[c]andidates 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 ensure 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, 236 F.3d
716, 719 (D.C. Cir. 2001) (“[T]he interior of a polling place is neither a traditional public
forum nor a government-designated one. . . . The only expressive activity involved is each
- 32 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 33 of 41
voter’s communication of his own elective choice and this has long been carried out privately—
by secret ballot in a restricted space.”); PG Publ’g Co. v. Aichele, 705 F.3d 91, 100 n.10 (3d Cir.
2013) (“We take this opportunity to make explicit that which has been implicit in our preceding
discussion: A polling place is a nonpublic forum.”); United Food & Commercial Workers Local
1099 v. City of Sidney, 364 F.3d 738, 749 (6th Cir. 2004) (“By opening up portions of school
and private property for use as polling places on election day, Ohio has not opened up a
nontraditional forum for public discourse.”); Cotz v. Mastroeni, 476 F. Supp. 2d 332, 364
(S.D.N.Y. 2007) (“Polling places clearly are non-public fora and voters present are subject to
various First Amendment restrictions, including those based on content.”). Though the Supreme
Court found in Burson that the 100-foot perimeter of a polling site was a public forum, that Court
did not reach the question of whether the interior of the polling site was itself a public forum.
See Burson, 504 U.S. at 196-97; but see id. at 216 (Scalia, J., concurring) ( “the environs of a
polling place, on election day, are simply not a ‘traditional public forum.’”).
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 non-public forum and partially outside of one. For example, 18
- 33 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 34 of 41
U.S.C. § 797 subjects to imprisonment and fine anyone who, under certain circumstances,
“reproduces, publishes, sells, or gives away any photograph, sketch, picture, 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. §
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, 520 U.S. 351, 362-63 (1997); Burdick v. Takushi, 504
U.S. 428, 438 (1992) (finding that state’s “ban on all forms of write-in ballots” was permissible,
as Supreme Court had “repeatedly upheld reasonable, politically neutral regulations that have the
effect of channeling expressive activity at the polls”); Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 461 (2008) (Roberts, C.J., concurring) (“the State controls the
content of the ballot, which we have never considered a public forum”)
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
- 34 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 35 of 41
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. Elec.
Law § 7-122 (regulations regarding absentee ballots generally); N.Y. Elec. Law § 7-124
(regulations regarding special federal ballots generally); N.Y. Elec. Law § 17-130(20) (“Any
person who . . . [i]ntentionally opens an absentee voter’s envelope or examines the contents
thereof after the receipt of the envelope by the board of elections and before the close of the polls
at the election . . . is guilty of a misdemeanor.”); N.Y. Elec. Law § 17-132(6) (“Any person who .
. . [b]eing an applicant for an absentee voter’s ballot, makes a material false statement in his
application, or a person who makes a material false statement in a medical certificate or an
affidavit filed in connection with an application for an absentee voter’s ballot . . . is guilty of a
felony.”); N.Y. Elec. Law § 17-132(7) (“Any person who . . . [n]ot being a qualified absentee
voter, and having knowledge or being chargeable with knowledge of that fact, votes or attempts
to vote as an absentee voter . . . is guilty of a felony.”); N.Y. Elec. Law § 17-132(8) (“Any
person who . . . [f]raudulently signs the name of another upon an absentee voter’s envelope or
aids in doing or attempting to do a fraudulent act in connection with an absentee vote cast or
attempted to be cast . . . is guilty of a felony.”)
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.
- 35 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 36 of 41
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 non-public 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, 311 F.3d at 546.
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.
The City Board’s No Photography Policy.
A. The City Board has Authority under State Law to Prohibit Photography at
Plaintiffs first argue that the City Board lacked the authority under state law to
enact the no photography policy. (Pls.’ 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
- 36 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 37 of 41
authority to appoint election inspectors and poll clerks, and election inspectors are required to
follow the direction of the City Board. N.Y. Elec. Law §§ 3-402, 3-404. Further, election
inspectors are required to “preserve good order within and around the polling place.” N.Y. Elec.
Law § 3-402. The no photography policy is a reasonable regulation that is closely related to
ensuring order at polling sites. The City Board did not exceed the scope of its statutory authority
by enacting this policy.
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,
97 F.3d 689, 696 (2d Cir. 1996). The act of taking a photograph, though not necessarily a
communicative action in and of itself, is a necessary prerequisite to the existence of a
photograph. It follows that the taking of photographs is also protected by the First Amendment.
See Fields v. City of Phila., 862 F.3d 353, 358 (3d Cir. 2017) (“The First Amendment protects
actual photos, videos, and recordings, and for this protection to have meaning the Amendment
must also protect the act of creating that material.”) (internal citation omitted); ACLU v.
- 37 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 38 of 41
Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) (“The act of making an audio or audiovisual
recording is necessarily included within the First Amendment’s guarantee of speech and press
rights as a corollary of the right to disseminate the resulting recording.”) (emphasis in original).
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,
752 F.2d 16, 23-24 (2d Cir. 1984) (no First Amendment right to have television cameras in
courtroom). However, even if polling sites were traditional public fora, the statute would still
pass muster because it is a content-neutral time, place, or manner restriction that is “narrowly
tailored to serve a significant governmental interest,” and that “leave[s] open ample alternative
channels for communication of the information.” McCullen, 134 S. Ct. at 2529.
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
counterfeit ballots. (Ryan Direct at ¶¶ 4-5.) Dr. Graves’ simulations, while not foolproof
predictors of the actual effects of permitting photography at polling sites, reinforced the
common-sense understanding that allowing voters to take ballot selfies would increase the time it
takes them to complete the voting process and therefore increase the length of lines and voters’
- 38 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 39 of 41
wait times at those sites. Long waiting times tend to suppress voter turnout. (Adler Direct ¶
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 lighting, 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
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.
- 39 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 40 of 41
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 of 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.
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., 373 F.3d 296, 308 (2d Cir. 2004) (quoting 28 U.S.C. § 1367(a)).
However, a district court “may decline to exercise supplemental jurisdiction over a [state law
claim] if . . . the district court has dismissed all claims over which it has original jurisdiction.”
28 U.S.C. § 1367(c)(3). Having dismissed plaintiffs’ First and Fourteenth Amendment claims,
the Court declines to exercise supplemental jurisdiction over plaintiffs’ state law claims.
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.
- 40 -
Case 1:16-cv-08336-PKC Document 151 Filed 09/28/17 Page 41 of 41
Dated: New York, New York
September 28, 2017
- 41 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?