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Proposal would make it legal to post a photo of your ballot

KEITH ARNOLD
Special to the Legal News

Published: November 16, 2018

A pair of Republican lawmakers are making an attempt - albeit late in the legislative session - to extend free speech right up to the nearest voting machine.

Eschewing bygone notions of reverence for the vote and privacy at the polling place, the millennial-Gen X legislative duo have proposed decriminalizing free speech as it relates to snapping pics of one's own ballot.

Reps. Niraj Antani of Miamisburg and Mike Duffey of Worthington have introduced House Bill 759 in an effort to decriminalize free speech regarding voter ballots - an issue, they say, that has repeatedly surfaced in news media reports the past several elections.

News outlets report the criminal liability of posting Election Day photos, including images of voters' marked ballots, to social media sites to an electorate ignorant of any such law, the legislators said.

"Citizens are often excited about voting and share photos of their ballots on social media," Antani said. "I believe this is a fundamental free speech right if they choose to share who they voted for.

"In the age of the Internet and social media, we must protect this right to free speech"

Under current law, such activity is illegal. Section 3599.20 of the Ohio Revised Code states: "No person shall ... allow the elector's ballot to be seen by another ... with the apparent intention of letting it be known how the elector is about to vote ... ."

The penalty for such a violation is a 5th degree felony.

"In my mind, Ohio's law is clearly unconstitutional," Duffey said. "A federal court in New Hampshire agreed. Some folks say, 'Well, this law is never enforced anyway, so why change it?'

"Because it hurts our justice system to have laws that are unenforced. It's not supposed to be a joke - we should work to repeal unconstitutional laws. Period. This is free speech."

The legislators said the ballot-sharing law, historically created to prevent voter fraud and corruption, is unnecessary because ORC 3599 already prohibits the selling of votes, i.e. bribery.

"The section about showing your ballot is redundant," Duffey continued. "You don't need it to catch people buying or selling votes. That's already illegal under a different section of the same chapter."

Specifically, HB 759 would change the language of one of the prohibitions of the section of the law to the following:

"Being an elector, allow the elector's ballot to be seen by another with the apparent intention of letting it be known how the elector is about to vote, except as provided by section 3505.24 of the Revised Code and except by means of a photograph taken by the elector for the elector's personal use, including making the photograph available to the public."

The bill awaits committee referral.

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