DENVER – A second lawsuit arguing Colorado’s laws forbidding people from taking pictures with their ballots is unconstitutional has been filed in federal court, and the matter is likely to be resolved before the Nov. 8 General Election.
The second suit was filed in U.S. District Court of Colorado Tuesday, and names three people as plaintiffs: Caryn Ann Harlos, who is the Communications Director of the Libertarian Party of Colorado and also serves as the region’s representative on the Libertarian National Committee; Denver voter Kiyomi Bolick and Denver voter Andrew Madson.
The suit is the second “ballot selfie” lawsuit filed in federal court in two days that challenges Colorado Revised Statute CRS §1-13-712, which forbids Coloradans from showing their completed ballots to anyone else or revealing how they voted. The full statute can be read below.
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.
Source: L. 80: Entire article R&RE, p. 434, § 1, effective January 1, 1981.
Editor's note: The provisions of this section are similar to provisions of several former sections as they existed prior to 1980.
Monday’s lawsuit named Colorado Secretary of State Wayne Williams and Colorado Attorney General Cynthia Coffman as defendants in the suit. It was filed by Colorado Springs Rep. Owen Hill and an 18-year-old Lakewood voter.
Tuesday’s lawsuit names Williams and Coffman as defendants, but also names Denver District Attorney Mitch Morrissey.
It asks a federal judge to declare portions 1 and 3 of the statute unconstitutional on the basis they violate the First and Fourteenth Amendment’s guarantee of free speech and expression, or at the very least to issue preliminary, then permanent injunctions to keep the statute from being enforced.
At issue in the most recent lawsuit are statements from Morrisey and Williams’ offices reminding voters of the statute and that it is illegal to take pictures with their ballots.
Harlos argues that as Communications Director of the Libertarian Party, she should have the right to post a picture of her voting for Libertarian candidate Gary Johnson to social media in order to promote the party she works for by the most widespread means possible.
Bolick is a Denver County voter who, according to the suit, decided who she was voting for for president after the last presidential debate. She took a picture of herself with her mail-in ballot and posted it to Facebook with her choice for president.
But afterward, an acquaintance of hers who is a prosecutor with the state Attorney General’s Office messaged her and told her doing so was illegal and that she risked prosecution by posting the picture. The suit said Bolick then removed the post, but still risks prosecution under the Colorado statute.
Likewise, Madson took a picture of himself with his filled-out ballot and sent the picture to “a few family members” and had planned to post it to social media, according to the suit. But he found out about the statute afterward and didn’t post it to social media “in order to avoid heightening his risk of prosecution,” according to the suit.
But since he had already sent the photo to others, he still technically risks prosecution.
The lawyers representing the three argue that subsection 3 of the revised statute “restricts enormous amounts of political speech that occupies a central part of our modern political discourse,” arguing that anyone who participated in an exit poll or spoke to journalists about who they voted for would also be violating the statute.
The statute stems from a law first written in 1891 that said, “A voter who shall…allow his ballot to be seen by any person, with an apparent intention of letting it be known how he is about to vote…shall be punished by a fine of not less than five nor more than one hundred dollars.”
In Monday’s lawsuit, the plaintiffs and their attorneys argued the revised statute “runs roughshod” and “cannot be properly tailored.”
Tuesday’s lawsuit cites Deputy Secretary of State Suzanne Staiert’s response to Monday’s suit, when she said in support of the statute:
“We believe the current law protects the integrity of the election and protects voters from intimidation or inducement. In fact, given Colorado’s unique election system and rise of social networking, the prohibition may be more important in Colorado than in other states and may be more timely today than ever.”
The Secretary of State’s Office reiterated its position on the statute Wednesday, pointing back to Staiert’s statement.
The “ballot selfie” issue has created headlines nationwide in the past week, as states have differing laws regarding taking pictures of one’s ballot. Singer Justin Timberlake was in hot water after posting a selfie with his ballot after he voted in Tennessee, though laws in that state are unclear.
A report by Vox says ballot selfies are legal in 22 states and Washington, D.C., illegal in 16 states, and the law is unclear in the remaining 13 states.
It is likely the two lawsuits will be consolidated, as they both argue essentially the same thing: that the revised statute is out of line with the First and Fourteenth Amendments of the U.S. Constitution.
The Secretary of State’s Office’s response to Monday’s suit is due by 5 p.m. Oct. 31. A hearing on that suit is set for 9 a.m. Nov. 2 in U.S. District Court of Colorado.
Should the suits be consolidated, it’s unclear if those dates will change.