CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 3/8/2023 1

Proscriptions Against Ballot Selfies 

Hill v. Williams (1:16-cv-2627) and Harlos v. Morrissey 

(1:16-cv-2649) (Christine M. Arguello, D. Colo.), 

Silberberg v. Board of Elections (P. Kevin Castel, S.D.N.Y. 

1:16-cv-8336), and ACLU of Northern California v. Padilla 

(William Alsup, N.D. Cal. 3:16-cv-6287) 

From eight to fifteen days before the 2016 general election, federal 

actions in three states sought relief from proscriptions on “ballot 

selfies”—photographs of ballots taken by voters completing them. 

These actions and previous actions in three other states pitted freedom of expression against the secret ballot. Some district and circuit judges favored freedom of expression; others favored the secret 

ballot. 

Subject: Polling-place activities. Topics: Laches; case 

assignment. 

A ballot selfie is a photograph, typically taken with a smart phone, of a completed ballot that may or may not include an image of the voter’s self.1

 Is political speech or the secret ballot more important?2

Election-Eve Cases 

Colorado 

Three voters filed a federal complaint in the District of Colorado on October 

24, 2016—about two weeks before the November 8 presidential election—

against Colorado’s secretary of state and its attorney general and Denver’s 

district attorney, challenging a state statute making it a misdemeanor to 

show someone a ballot to reveal its contents: “Speech about how one votes in 

an election rests at the core of political speech protected by the First 

Amendment.”3 With their complaint, the voters filed a motion for a preliminary injunction.4

1. Rideout v. Gardner, 838 F.3d 65, 67 (1st Cir. 2016). 

2. Silberberg v. Bd. of Elections, 272 F. Supp. 3d 454, 459 (S.D.N.Y. 2017) (“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. [But the] State of 

New York has a compelling interest in preventing vote buying and voter coercion.”); see 

Alejandro Lazo, “Ballot Selfie” Bans Disputed, Wall St. J., Nov. 3, 2016, at A4; see also Think 

Before You Shoot! Ballot Selfies May Be Illegal in Your State, www.courtroomstrategy.com/ 

2016/11/think-before-you-shoot-ballot-selfies-may-be-illegal-in-your-state/, archived at

web.archive.org/web/20201203073143/www.courtroomstrategy.com/2016/11/think-beforeyou-shoot-ballot-selfies-may-be-illegal-in-your-state/. 

3. Complaint, Hill v. Williams, No. 1:16-cv-2627 (D. Colo. Oct. 24, 2016), D.E. 1; see 

Second Amended Complaint, id. (Dec. 29, 2016), D.E. 47; Amended Complaint, id. (Nov. 1, 

2016), D.E. 22; see also Colo. Rev. Stat. § 1-13-712 (2016). 

4. Preliminary-Injunction Motion, Hill, No. 1:16-cv-2627 (D. Colo. Oct. 24, 2016), 

D.E. 7. 
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2 Federal Judicial Center 3/8/2023 

Judge Christine M. Arguello set the case for hearing on November 2.5

On October 25, a second set of three voters filed a similar federal complaint in the District of Colorado against the same three defendants.6

 With 

their complaint, the voters filed a motion for a temporary restraining order 

and a preliminary injunction.7 Judge John L. Kane set the case for hearing on 

October 28,8 but on October 26 he transferred the case to Judge Arguello as 

related to her case.9 She set the case for hearing on November 2.10

[I]n light of the fact that the mail-in ballots have gone out to all registered voters in Colorado and the presidential election is on November 8th, 

this Court had no choice but to expedite the hearing of the motions and to 

curtail the time that the defendants would normally have to respond to 

those motions.11

A second day of hearing in both cases was held on November 3.12

New York 

Three voters challenged New York’s misdemeanor proscription against ballot selfies with a federal complaint filed in the Southern District of New York 

against state and local election officials and two county district attorneys on 

October 26, 2016.13 Judge P. Kevin Castel set the case for hearing on November 1 with an instruction to explain why the plaintiffs waited until thirteen 

days before the election to file the complaint.14

California 

An October 31 federal complaint filed in the Northern District of California 

by the ACLU against California’s secretary of state challenged a statute that 

had already been repealed but would remain in effect through the end of 

2016.15 The ACLU sought a temporary restraining order and a preliminary 

5. Docket Sheet, id. (Oct. 24, 2016) (D.E. 10, 27). 

6. Complaint, Harlos v. Morrissey, No. 1:16-cv-2649 (D. Colo. Oct. 25, 2016), D.E. 1. 

7. Motion, id. (Oct. 25, 2016), D.E. 6. 

8. Docket Sheet, id. (Oct. 25, 2016) [hereinafter Harlos Docket Sheet] (D.E. 7). 

9. Order, id. (Oct. 26, 2016), D.E. 11. 

10. Harlos Docket Sheet, supra note 8 (D.E. 13, 27). 

11. Transcript at 6, Hill v. Williams, No. 1:16-cv-2627 (D. Colo. Nov. 2, 2016, filed Dec. 

5, 2016), D.E. 36. 

12. Transcript, id. (Nov. 3, 2016, filed Dec. 5, 2016), D.E. 37. 

13. Complaint, Silberberg v. Bd. of Elections, No. 1:16-cv-8336 (S.D.N.Y. Oct. 26, 2016), 

D.E. 1; Silberberg v. Bd. of Elections, 272 F. Supp. 3d 454, 460 (S.D.N.Y. 2017); see N.Y. Elec. 

Law § 17-130(10) (2016); see also Docket Sheet, Silberberg v. Bd. of Elections & Comm’rs, 

No. 1:16-cv-8334 (S.D.N.Y. Oct. 26, 2016) (defective case filing). 

14. Order to Show Cause, Silberberg, No. 1:16-cv-8336 (S.D.N.Y. Oct. 26, 2016), D.E. 5. 

15. Complaint, ACLU of N. Cal. v. Padilla, No. 3:16-cv-6287 (N.D. Cal. Oct. 31, 2016), 

D.E. 1; see Cal. Elec. Code § 14276 (2016) (“After his or her ballot is marked, a voter shall 

not show it to any person in such a way as to reveal its contents.”), repealed by 2016 Cal. Stat. 

c. 813 (A.B. 1494), § 1, eff. Jan. 1, 2017; id. § 14291, as amended (2017) (“A voter may voluntarily disclose how he or she voted if that voluntary act does not violate any other law.”). 
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injunction.16 Judge William Alsup set the case for “the earliest possible hearing,” which was November 2.17

Previous Litigation in Other States 

New Hampshire 

Applying intermediate scrutiny on September 28, the U.S. Court of Appeals 

for the First Circuit held New Hampshire’s proscription on ballot selfies to 

be not narrowly tailored to serve a significant government interest, because 

there was no showing that vote buying or coercion was an actual problem.18

The court of appeals affirmed an August 11, 2015, decision by District of 

New Hampshire Judge Paul Barbadoro19 in a case filed on October 31, 2014.20

Indiana 

Southern District of Indiana District Judge Sarah Evans Barker issued a preliminary injunction against criminal penalties for ballot selfies in Indiana on 

October 19, 2015.21 Judge Barker made the injunction permanent by summary judgment on January 19, 2017.22 She found insufficient justification for 

the content-based restriction.23

Since issuing our preliminary injunction, the State has had seven months—

a span of time which included the 2015 election cycle and the 2016 primaries—to fully develop a factual record that would establish an ongoing problem of vote buying in Indiana. . . . 

. . . 

[The proscription] extends far beyond the targeted speech in attempting to prevent vote buying. . . . [W]e fail to see how banning voters from 

taking photos of unmarked ballots in any way serves the statute’s goal of 

protecting voters from vote buying and voter coercion. More particularly, 

even the prohibition on taking and sharing pictures of marked ballots draws 

into its ambit voters who may choose to take photos for entirely legitimate 

and legally innocuous reasons.24

16. Application, ACLU of N. Cal., No. 3:16-cv-6287 (N.D. Cal. Oct. 31, 2016), D.E. 3. 

17. Order, id. (Oct. 31, 2016), D.E. 8; Transcript at 3, id. (Nov. 2, 2016, filed Nov. 2, 

2016), D.E. 14 [hereinafter ACLU of N. Cal. Transcript]; see id. at 52 (“the fastest possible 

hearing”). 

18. Rideout v. Gardner, 838 F.3d 65 (1st Cir. 2016), cert. denied, 581 U.S. 904 (2017); see

Joe Palazzolo, Voided Ban on Ballot Selfies Will Stand, Wall St. J., Apr. 4, 2017, at A3. 

19. Rideout v. Gardner, 123 F. Supp. 3d 218 (D.N.H. 2015). 

20. Docket Sheet, Rideout v. Gardner, No. 1:14-cv-489 (D.N.H. Oct. 31, 2014). 

21. Opinion, Ind. Civil Liberties Union Found. v. Ind. Sec’y of State, No. 1:15-cv-1356 

(S.D. Ind. Oct. 19, 2015), D.E. 32, 2015 WL 12030168; see Transcript at 11–12, id. (Oct. 13, 

2015, filed Mar. 28, 2017), D.E. 61 (Judge Barker’s noting that “[t]his statute was enacted 

after the District Court in New Hampshire in Rideout had made its decision” and that selfie 

proscriptions are somewhat “impractical in this day and age where pictures are taken of everything”); Complaint, id. (Aug. 27, 2015), D.E. 1. 

22. Ind. Civil Liberties Union Found. v. Ind. Sec’y of State, 229 F. Supp. 3d 817 (S.D. Ind. 

2017). 

23. See id. 824. 

24. Id. at 824–26. 
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Indiana’s secretary of state decided not to appeal the injunction.25

Michigan 

By a vote of two to one, on October 28, 2016, the U.S. Court of Appeals for 

the Sixth Circuit thought that a “ban on photography at the polls seems to be 

a content-neutral regulation that reasonably protects voters’ privacy—and 

honors a long tradition of protecting the secret ballot.”26 But the court did 

not resolve the merits of the case, because it thought that Western District of 

Michigan Judge Janet T. Neff’s October 24 injunction against the proscription fell too close to the election.27 Judge Neff decided on August 30, 2018, 

that the plaintiffs had standing to pursue an amended complaint.28 But she 

issued a stipulated dismissal on May 8, 2019, as state officials relaxed the 

photography ban.29

Resolution of the New Cases 

California 

On November 2, 2016, Judge Alsup denied the plaintiffs an immediate injunction against ballot-selfie proscriptions.30

THE COURT: All right. I have a decision to make, whether to do this 

orally from the bench or to take a few days and write an order. 

But in light of the timing of the election coming up, and I want as a 

courtesy to both sides to give you my ruling so that if either side wishes to 

take an appeal to the court of appeals it can be at least lodged before the 

election occurs. 

. . . 

Now the question has come up: Why didn’t the ACLU bring this lawsuit sooner? None of their explanations make any sense to me.31

Judge Alsup expressed concern about two things. First, the challenged 

statute protected the secret ballot. 

25. Motion, Ind. Civil Liberties Union Found. v. Ind. Sec’y of State, No. 17-1356 (7th Cir. 

Apr. 25, 2017), D.E. 12; see Dismissal Order, id. (Apr. 25, 2017), D.E. 13. 

26. Crookston v. Johnson, 841 F.3d 396, 399–400 (6th Cir. 2016). 

27. Id. at 397–99, 401; Crookston v. Johnson, 854 F.3d 852 (6th Cir. 2016) (deferring further review of the merits until final resolution of the district-court case); see Opinion, 

Crookston v. Johnson, No. 1:16-cv-1109 (W.D. Mich. Oct. 24, 2016), D.E. 18, 2016 WL 

9281943; Complaint, id. (Sept. 9, 2016), D.E. 1. 

28. Crookston v. Johnson, 370 F. Supp. 3d 804 (W.D. Mich. 2018); Amended Complaint, 

Crookston, No. 1:16-cv-1109 (W.D. Mich. Oct. 11, 2017), D.E. 65.

29. Dismissal, Crookston, No. 1:16-cv-1109 (W.D. Mich. May 8, 2019), D.E. 100; see Jonathan Oosting, Benson Eyes Settlement in “Ballot Selfie” Suit, Detroit News, Feb. 23, 2019, at 

B2. 

30. Order, ACLU of N. Cal. v. Padilla, No. 3:16-cv-6287 (N.D. Cal. Nov. 2, 2016), D.E. 

13; Minutes, id. (Nov. 2, 2016), D.E. 15; ACLU of N. Cal. Transcript, supra note 17, at 60. 

31. ACLU of N. Cal. Transcript, supra note 17, at 47, 53; see id. at 58 (“no one is at fault 

more than the ACLU for waiting as long as they did for bringing this lawsuit and trying [to] 

jam this through at the last minute”). 
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THE COURT: . . . I’m old enough to remember the days when employers would take busloads of people to the polling place in other states. And 

I—there’s a reason for this law. And if you didn’t show the employer how 

you voted for their favorite guy, you got fired or the union boss did the 

same thing to you.32

Second, the relief sought would create uncertainty about the extent to which 

disruptive selfies could be prevented: prolonged photographic sessions, the 

use of cumbersome equipment such as a selfie stick, and whether photos 

would include persons other than the voter.33

Following the election, the plaintiffs voluntarily dismissed their case.34

Colorado 

On November 4, Judge Arguello enjoined criminal prosecutions for ballot 

selfies.35 She did not enjoin the selfie proscription per se, just criminal penalties for its violation: 

This Court has no intention of disrupting the upcoming election in Colorado. Indeed, it is exactly for this reason that the Court has narrowly tailored 

its injunction to ensure that it does not alter existing election laws or rules. 

Furthermore, it has not enjoined the Secretary of State in any way and its 

injunction does not affect procedures or rules at polling places. Specifically, 

if local rules at polling places prohibit the use of cameras due to privacy 

concerns, nothing in this Court’s Order prohibits the enforcement of those 

rules.36

The Colorado litigation was mooted on March 16, 2017, with the enactment 

of legislation permitting ballot selfies in Colorado.37

New York 

On November 3, 2016, Judge Castel ruled that the secret ballot trumped political expression and the equities cautioned against a last-minute change.38

Because of the statute, those who would engage in ballot policing, for 

the purpose of bribery or to enforce orthodoxy among members of a group, 

32. Id. at 8. 

33. Id. at 51–60. 

34. Notice, ACLU of N. Cal., No. 3:16-cv-6287 (N.D. Cal. Nov. 18, 2016), D.E. 16. 

35. Opinion at 26, Hill v. Williams, No. 1:16-cv-2627 (D. Colo. Nov. 4, 2016), D.E. 33, 

2016 WL 8667798. 

36. Id. at 17. 

37. Election Offenses Committed By A Voter, openstates.org/co/bills/2017A/HB17-

1014/; Order, Harlos v. Morrissey, No. 16-1471, and Hill v. Morrissey, No. 16-1470 (10th 

Cir. Apr. 14, 2017) (accepting a voluntary dismissal of the appeals); see Order, Harlos v. 

Morrissey, No. 1:16-cv-2649 (D. Colo. Feb. 10, 2017), D.E. 55 (administratively closing the 

case); Order, Hill, No. 1:16-cv-2627 (D. Colo. Feb. 10, 2017), D.E. 62 (same); Notice, Harlos, 

No. 1:16-cv-2649 (D. Colo. June 20, 2017), D.E. 67 (noting settlement as to attorney fees); 

Notice, Hill, No. 1:16-cv-2627 (D. Colo. June 12, 2017), D.E. 67 (same); Notice, Harlos, No. 

1:16-cv-2649 (D. Colo. June 7, 2017), D.E. 63 (same); see also Kristen Wyatt, Ballot Selfie Bill 

Goes to Governor, Denver Post, Mar. 3, 2017, at 5A. 

38. Silberberg v. Bd. of Elections, 216 F. Supp. 3d 411 (S.D.N.Y. 2016); Silberberg v. Bd. 

of Elections, 272 F. Supp. 3d 454, 460 (S.D.N.Y. 2017). 
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whether members of [a] union, employees of a company, or members of a 

religious group, have long[] been deprived of an essential tool for success. 

The absence of recent evidence of this kind of voter bribery or intimidation 

does not mean that the motivation to engage in such conduct no longer exists. Rather, it is consistent with the continued effectiveness of the New 

York statute. 

This action was commenced 13 days before the presidential election, 

even though the statute has been on the books longer than anyone has been 

alive. Selfies and smartphone cameras have been prevalent since 2007. A 

last-minute, judicially-imposed change in the protocol at 5,300 polling places would be a recipe for delays and a disorderly election, as well-intentioned 

voters either took the perfectly posed selfie or struggled with their rarelyused smartphone camera. This would not be in the public interest, a hurdle 

that all preliminary injunctions must cross.39

Following an August 29 to 31, 2017, bench trial on an amended complaint,40 Judge Castel concluded that the proscription on ballot selfies survived strict scrutiny, “for a law prohibiting the display [of] a marked ballot 

only for the purpose of vote buying or coercion would be ineffective.”41

39. Silberberg, 216 F. Supp. 3d at 414–15 (footnote omitted). 

THE COURT: . . . [T]he philosophy was not to permit a secret ballot, but the Australian 

Ballot Movement of the late 19th Century required the voter to cast a secret ballot even if the 

voter wanted to cast a public ballot, so that an employer or maybe a church leader or a group 

leader could not enforce Orthodoxy on the members, could not bribe a voter. 

Transcript at 20, Silberberg v. Bd. of Elections, No. 1:16-cv-8336 (S.D.N.Y. Nov. 1, 2016, 

filed Nov. 15, 2016), D.E. 23. 

40. Transcripts, Silberberg, No. 1:16-cv-8336 (S.D.N.Y. Aug. 29 and 31, 2017, filed Sept. 

18 and 22, 2017), D.E. 142, 149; Silberberg v. Bd. of Elections, 272 F. Supp. 3d 454, 460 

(S.D.N.Y. 2017); see Second Amended Complaint, Silberberg, No. 1:16-cv-8336 (S.D.N.Y. 

Apr. 17, 2017), D.E. 90; Amended Complaint, id. (Dec. 9, 2016), D.E. 26; see also Docket 

Sheet, id. (D.E. 23, 26, 45, 46, 49, 72) (repeated efforts to file the amended complaint). 

41. Silberberg, 272 F. Supp. 3d at 459.