case mess over it all went to her assigned polling place on election day november th in inquired of the election judge at her polling place whether she could take a enforcing the no photography and in the polling facilities mr and mr man you know when i started reading this case in occurred to me that so are we going to apply article three law that is do you have to have an injury but in that case the person was charged weren't they with a misdemeanor that they were charged with a misdemeanor i mean there's been no but here i mean i guess i'm happy i'm struggling a little bit and the  attorney general then raised this but if you didn't take the photograph and he didn't get charged where's the harm i mean i'm not i'm not clear how this is right and maybe i'm thinking too deeply  short so i mean no one has that i am aware of bust or has indicated that they would not be i mean the embers can be said no one has said that they are not going to be charging  table and suppose is the question if she didn't violate rule she can be charged with anything is that correct well i mean i think it is correct you did not take the actual photographs at the site now as to whether or not the case that's right but i think the issue will hurt damage is that she doesn't have her photograph that she was wanting to show and demonstrate her st amendment right to people so if have i am one question there was no physical restraint she was just told no that is my understanding that that is what is alleged and no one that i am aware  wished i mean in effect she was told in her mind i suppose that i'm going to have someone that is taking criminal action on me and getting in trouble  i can't remember now or as if there was a charge but let me ask you a different question that kind of assuming the case is right do you think are you are you making as a client in unconstitutional argument are you making an argument that it is for all people unconstitutional well another part in answering the question i would suppose it probably would have to be selsey on a public street by absentee ballot that person or the person taking the photograph not in the polling area it is my position that it's very clear that there are st amendment protections that the statute and all of the public forum are our arguments would not apply with someone taking a photograph outside of the polling area with that said if the statue or unconstitutional as to someone voting from their their t v room or by their mail i don't know how the how the statute that's referenced five plays twenty nine dollars and i don't know how the court would parse that in trying to uphold it for people that took photographs outside of the polling area as opposed to those that are in the only area you know from the work you've done that we have very different burdens to consider versus as applied versus you know whol unconstitutional and if i'm at home and i vote by mail i'm in the privacy of my own home i've got a bow and i make sure it's not a violation of the law is it have it in front of me where they found that it was unconstitutional but there's the right zero which is out of new right out it was the right out case yeah for it as i read both of the decisions the lower court and the seven that type of behavior for that reason well i'd i think the right out i mean there's several cases that i cite out of colorado and new hampshire that deal with have in answering your question the new hampshire cases both the district court and the federal appeals courts so yes there are alternatives that  aren't twisting arms and breaking in camps for someone to vote a certain way there are separate statutes that deal furthermore the district court on the right decision they used the or some cases like that that they've heard of in that case didn't even deal with photography at all i just i don't believe there is very if you look at the like the silverberg case which is seemingly the one case that the state really has to hang its hat on are these prohibitions constitutional which i think is a flawed analysis of the over brett's doctrine by applying that doctrine allowing a rd party that's not before the court now they can see to challenge on a st amendment basis so that the silverberg case number one i mean they expressively didn't even address that fact better content based description and which is the same issue in this case as well but they try and stay tries to portray this as a continent neutral restriction please the court i mean it was frank yes got my represents the state of illinois and the chairman of the board of elections before getting into the merits of the are and i just want to briefly address the rightness issue  voter may do with a government issued ballot during the act of voting specifically prohibits a voter from marking the ballot in such a way that somebody else can observe the contents of the ballot the statute does not therefore has always regulated the ballot so could you stop at this point we might have lost one of the members of the court is judge more over with the statutory tax come not sure when justice for paris cut out but just to recap beginning with the statutory text section twenty nine dollars regulates what a voter may do with the ballots during the act of voting specifically it voter from marking a ballot in such a way that the contents of the needed ballot can be observed by someone else the law does not target social media or any other form of communication the statute in fact was  nine protect the integrity of the secret ballot and it does so in concert with other provisions in the election code that have the same purpose as mandated by the illinois constitution and consistent with the store  let me ask the question are you saying that if i take a picture of my ballot at home in joke a no your honor if the law applies regardless of where the ballot is completed because the relevance of forum the relevant government property for purposes of form analysis is the ballot itself and that the nonpublic for regardless of where someone happens to be standing are located when they fill out so when you use the were nonpublic forum you're referring to the ballot you're not referring to the location of where i'm filling it out correctly i think that's the best analysis now if it is true that the polling place itself is also a nonpublic forum and so to the extent that section twenty nine dollars regulates the polling place you would end up with the same constitutional path and there are some aspects of twenty nine dollars that do affect the polling place for example it ensures an orderly election process because people are taking ballot selfies that could slow down the process of voting which could be particularly problematic during fourteen hours but the prize but primarily what two hundred and ninety nine does is it regulates what a voter can do wit the constitutional the governing constitutional test differs ending on the outcome of that question if it's a public forum then content based restrictions receive strict scrutiny but i was going to say you have district scrutiny burd subject matter and so at least for purposes of this appeal we're not arguing that section twenty nine i did not the way you're arguing it's not content ain't no word we're viewpoint neutral is this is a different concept even if something is content based a law satisfies st amendment analysis in a nonpublic forum viewpoint neutral and reasonable and with regard to the ballot the supreme court has stated i'm more than one occasion that the ballot itself is a nonpublic explained that the ballots are of the very limited purpose which is to cast a vote in an election for a candidate for public office it is not means by which people can express political messages to the public large and so consistent with the court's numerous ballot access cases  state can restrict the use of the ballots so long that is reasonable and nondiscriminatory songs and does not discriminate on the basis of what the court most directly said that and to mention the building upon the ballot access cases elections i secret ballot the entire basis of the option of the secret ballot system is to ensure that other people and not visually confirm that somebody has voted in a particular way they want to make sure that that person actually voted in that way and so the best way to ensure that that happened is to require somebody to provide this will evidence of the completed ballot proving that they were also applying completed ballot but that voter could barry you know has every other option available to them to express their pride in having voted and express their preference for one candidate over another they're free to really do anything else they argument are pretty much the same argument was made in person which was one of the supreme court case we cited and the court rejected that argument in that case even under a strict scrutiny analysis in a voting case yes your honor that the person case involved a one hundred dollars foot campaign present on outside of the only place where it entirely prevented any political speech within that area and in person the campaign contribution limits the court said that you know the fact that there are laws that criminalize fraud that kernel as bribery that require disclosure that's not enough the state has to have the freedom to address the means by which aspect to silverberg where the court also says that the ballot is a non public forum as well in addition to the polling place but i would also way and right out is inconsistent with a lot of those decisions the primary flaw with right out analysis is that it didn't conduct of the initial form and elsa's jump straight into whether this was content based or content neutral presumably i guess assuming that it was a public forum or i don't know why the court foreman else it went straight into bat analysis but even one applying intermediate and strict scrutiny right out of it in a number of technology well i think so your honor but even if it isn't plaintiff i don't understand or those arguments would be that thinks in is too harsh i think i believe the argument more to be that neutral and reasonable yes your honor so when we look at the stats you were looking at all of this that you're not just that little portion we're also looking at the penalty involved do you disagree with that well i for for engaging in certain conduct if it's protected by the st amendment it would you know it would violate it would violate the st memory garlits of the severity but also i think that that's an issue that would be better discussed or decided in a case where that's correct and also but just going back to right real quick one other law with the decision in the way that it deals with person it's in right out the court decided that the ban on  compelling you know if a lot of that secures the area around a voter satisfy strict scrutiny that one that prevents a voter from displaying the contents of a completed ballot must as well because that was public forum the state's argument still fails and that hypothetical is if you had someone again voting from home or voting on a public street which i think the supporter or a donald trump supporter and they had their t shirt on saying i support joe i support donald and they're holding their bile in their hands that's completed and they take about the doings by the text of the statute that says quote stay on prohibits voters from taking photographs with their completed period close quote whether or not the ballot itself is considered part of this huge effect that someone's wearing and that fact pattern ha shirt saying i support some candid it i mean it's core political speech on there that they're wearing that they're saying i support whoever again i think that what they're the square use the ballot itself as a public form are not i think it is irrelevant because just other things in the photograph that could be court political speech supposed to be who meet the requirements to be on the ballot that the state will perhaps i don't i could not locate a decision one way or the other dealing with when someone title to a lower level of protection effect i mean if you're wearing something else a button a t shirt or something else that you support whoever and you're holding the ballot if you're and something else in addition to the bile you are now committing a class for phoning when you take a picture of yourself if you didn't have the ballot in your hand and you took a photograph of you're correct your honor but my point is if you had one person standing there with their political sure what that out a mark about in their hand would be ok if they're on the public street but as it says prohibits voters from taking photographs with their completed ballot and so i suppose that at that level if you had a completed ballot and you folded it into so