Wednesday, August 30, 2017

NY Ballot Selfies Could Lead to Voter Pressure


Allowing New York Voters to take Selfies with their Marked Ballots could allow Groups to put Pressure on Members to reveal their Votes, a Political Science Professor testified Tuesday in the New York Federal Bench Trial of a Suit by Voters who Claim the Selfie Ban Violates their First Amendment Rights.

U.S. District Judge P. Kevin Castel asked E. Scott Adler, a Professor of Political Science at the University of Colorado Boulder, whether a Group like the National Rifle Association or a Church could use the Phenomenon of Ballot Selfies to Enforce Orthodoxy in Voting.

Adler, testifying as an Expert Witness on behalf of New York State Election Officials, noted there was already considerable Social Pressure for People to Post Online about their children or their Vacations, and said that Vote Reveals could become a New Social Pressure. “That becomes commonplace, and all of a sudden your NRA chapter is saying, ‘Why didn’t you post your ballot selfie?’” Adler said, adding, “My fear is that kind of effect would bleed in here too.”

The named Plaintiff in the Suit, Eve Silberberg, testified that she might Reveal a Photo of her Marked Ballot to her more than 1,000 Facebook Friends were it Legal to do so. She said the Photo would show the Validity and Execution of her Vote as well as the Conviction behind it. Asked whether She could just State whom she Voted for, Silberberg said, “It wouldn’t have the same impact or validity or veracity. … It’s that extra step, that demonstration.”

Silberberg’s Lawyer, Leo Glickman of Stoll Glickman & Bellina LLP, sparred a bit with Judge Castel on the Law, with Glickman holding that the Ban is a Solution in Search of a Problem. “If there’s not a problem, there’s no need to enact a statute,” he said.

Judge Castel replied, “When an evil to which a statute is directed does not rear its ugly head post-enactment, it does not mean the law was enacted unnecessarily.” But, Glickman said, the Law should be considered through the Standard of Strict Scrutiny because it involves a constitutional Right. “The question is whether the ban infringes on a First Amendment right, and it is narrowly tailored to serve a compelling state interest,” Glickman said.

The Trial was somewhat unusual because the Witnesses submitted Direct Testimony by Affidavit and their Live Testimony began with Cross-Examination.

The Plaintiffs are Represented by Leo Glickman and Amy Robinson of Stoll Glickman & Bellina LLP. The City Defendants are Represented by Evan Schnittman and Martin Bowe of the New York City Law Department. The State Defendants are represented by John M. Schwartz, Bradford S. Glick, and Christine Ryan, of the New York State Attorney General's Office.

A Group of Voters filed Suit against New York State and New York City Officials in October 2016, asking the Court to find Unconstitutional on First Amendment grounds a 127-year-old New York Law, designed to Prohibit the Sale of the Voting Franchise, that Bans Voters from showing Anyone their Completed Ballots. The Complaint addressed both State and Federal Claims and asked the Court to Enjoin Officials from Enforcing it.

But Judge Castel Denied the Motion for Injunctive Relief during the Week running up to Election Day, saying an Injunction would Negatively Impact Voters' Experience at the Polls, while the Plaintiffs could still express a Political Message through “other powerful means.”

The Case got narrower in May when Judge Castel Dismissed Federal Claims against the State Board of Elections under the 11th Amendment, which Grants Sovereign Immunity to States in Federal Court. He also tossed State Claims against the Board and its Commissioners, though they remain Defendants in the Federal Claim. It was pared again on Tuesday when Judge Castel Dismissed Claims involving Pictures taken with Absentee, Foreign, or Military Ballots, leaving only the Question involving Ballots Cast at a Polling Place.

The Plaintiffs and the State Defendants rested their Case Tuesday. The City Defendants are expected to Present their Final Witness on Thursday.

After the Hearing, Douglas A. Kellner, Co-Chair of the New York State Board of Elections, said: “I think that the statute enacted in 1890 that makes it illegal for a voter to display a marked ballot makes a lot of sense. It doesn’t prevent voters from telling people how they voted, but it prevents the voter from proving how he or she voted — and that’s the key.”

Glickman said he hoped Judge Castel would look at the Case under the Strict Scrutiny standard in Assessing the impact of the Law on his Clients’ Rights. “My clients want to ensure that the First Amendment applies to those with few resources as it does for those with many resources,” Glickman said. “And that’s why we’re here today.”

The case is Silberberg et al. v. Board of Elections of the State of New York et al., case number 1:16-cv-08336, in the U.S. District Court for the Southern District of New York.











NYC Wins When Everyone Can Vote! Michael H. Drucker
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