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Federal judge keeps Colorado 'ballot selfie' law on books but says AG, DA's can't prosecute

Posted at 8:09 PM, Nov 04, 2016

DENVER – A law prohibiting people from taking pictures of their completed ballots, or taking “ballot selfies,” will stay on Colorado’s law books, but the state’s attorney general and district attorneys won’t be allowed to charge anyone who does so.

A U.S. District Court of Colorado judge on Friday evening issued the order to enjoin both the Attorney General’s Office and Denver District Attorney’s Office from prosecuting or investigating violations of Colorado Revised Statute §1-13-712 unless it happens in connection with another crime – election-related or not.

The statute was under attack in two suits filed last week by a handful of Colorado voters, a spokesperson for the state Libertarian Party and a Colorado state representative.

The plaintiffs had charged the AG’s Office, DA’s Office and Colorado Secretary of State were violating First and Fourteenth Amendment free speech rights by enforcing the lawsuit, which has roots in law written in the 1890s.

The parties had sought a preliminary and eventual permanent injunction, arguing the laws did not belong on the books and should be deemed unconstitutional.

“By issuing an injunction in this case, Coloradans get what they are entitled to—clarity on an issue that implicates fundamental constitutional rights,” Judge Christine M. Arguello wrote in her judgment.

At root of the argument in both lawsuits was the first clause of the statute, though the second suit, filed by the Libertarian spokesperson and voters, also charged that the third clause should be struck down.

1-13-712. Disclosing or identifying vote.

(1) Except as provided in section 1-7-108, no voter shall show his ballot after it is prepared for voting to any person in such a way as to reveal its contents. No voter shall place any mark upon his ballot by means of which it can be identified as the one voted by him, and no other mark shall be placed on the ballot by any person to identify it after it has been prepared for voting.

(2) No person shall endeavor to induce any voter to show how he marked his ballot.

(3) No election official, watcher, or person shall reveal to any other person the name of any candidate for whom a voter has voted or communicate to another his opinion, belief, or impression as to how or for whom a voter has voted. (

4) Any person who violates any provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished as provided in section 1-13-111.

Judge Arguello ruled the Secretary of State’s Office would not be enjoined in her judgment, allowing the rules to stay on the books and freeing the office of having to train workers at the last minute on new rules, which lawyers for the office had argued would happen.

The case against the third clause was dropped in the judgment, but said the first clause had free speech issues.

“Despite the potentially broad array of conduct that it captures, § 1-13-712(1) has no mens rea requirement related to the interest it purportedly furthers – voter fraud,” Judge Arguello wrote.

The judgment means that local polling places will still be able to enforce their own rules, which sometimes include a photography ban at polling places.

“Nothing in this Order shall alter the ability of Defendants or other officials to enforce any other laws, rules, or regulations related to the administration of the election, including those rules in effect at polling places,” the judge wrote in conclusion.

In a statement, Deputy Secretary of State Suzanne Staiert applauded the decision not to enjoin the office in the final judgment.

“We continue to believe the law serves an important interest in protecting the integrity of the election and guarding against inducements and voter intimidation. We are pleased the injunction does not apply to the secretary or the 64 county clerks currently focused on running the election.  Currently, photography is banned in many voter polling and service centers. This order has no effect on those bans and voters should not expect this order to alter the process for in-person voting. “

On Saturday, Colorado Attorney General Cynthia Coffman wrote that the ruling does not give anyone a free pass to engage in other illegal behavior while exercising the right to vote.

As the Attorney General it is my responsibility to defend the laws of the State, including CRS § 1-13-712(1) which is intended to protect voters and the sanctity of ballot secrecy. While this Preliminary Injunction provides accommodations for some of the conduct the plaintiffs have claimed they wish to engage in, it is not a ruling on the constitutionality of the law nor is it a free pass for anyone to engage in other illegal behavior. My office will not tolerate voter intimidation, fraud, or other illegal acts that could affect the integrity of the voting process.

Several district attorneys submitted sworn testimony they would not prosecute any “ballot selfie” cases as part of the two-day evidentiary hearing.

But the judge said that simply saying so did not assure people that district attorneys would “refrain from an invasive investigation or coercive ‘request’ that violators delete their ballot ‘posts,’ both of which could chill the exercise of the First Amendment right to speech.”

Judge Arguello spent the second half of Thursday and all day Friday pondering and writing the judgment, which was not issued until after the end of Friday’s business hours.

But she was clear in describing the importance of the issue as it related to free speech protections.

“The statute at issue here implicates a most fundamental exercise of the First Amendment right to speak in and about our elections. It affects voters from every corner of Colorado,” she wrote.

“We cannot know whether the assurances against prosecution extended incident to this lawsuit will be received or understood by those unnamed citizens the Plaintiffs today represent. In the absence of a clear statement from this Court, the threat of prosecution will be especially real."

The ruling came after several other courts decided contrarily on similar matters this week, upholding laws banning “ballot selfies” in New York, California and Michigan.

A spokesperson for the Libertarian Party of Colorado called the ruling “an important step towards eliminating [an] unconstitutional law,” and said “the fight isn’t over,” adding that the group would still likely seek a permanent injunction.

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