West Virginia’s Secretary of State has made it very clear, West Virginia voters cannot take photos while in the voting booth. In fact, Secretary Natalie Tennant says you can’t take your phone into the voting booth at all. But some people don’t think state code is clear on the matter.
A Questionable Ballot
David Delk of Ohio County voted early this year. He says he noticed something off about the ballot.
“When I got to the nonpartisan board of education ballot,” Delk recalled, “just the fact that five candidates were on one page and another candidate was on the second page, and there were no clear instructions on how to get to the second page - it just struck me as fundamentally unfair.”
So Delk did what comes naturally to many of us: “I took my phone out, and took a picture of that section of the ballot,” Delk said. Then he posted the picture on social media.
The Letter of the Law
Secretary of State’s Office says he wasn’t the only one documenting the voting experience. The office received several other reports of photos taken inside ballot booths - photos which then appeared on social media. These reports prompted the office to issue a statement saying it’s illegal to photograph any part of the voting process, that no electronic devices or cellphones are allowed in the voting booth, and that poll workers have been instructed to tell people not to have devices out while voting.
"As code stands right now, it clearly and plainly says you cannot use an electronic device to record any of the proceedings,” said Secretary of State Natalie Tennant.
Delk, who also happens to be an attorney, maintains that the language does not really prohibit photographs or cell phones which brings the legislative intent into question.
“The language of the statute is important, every word is there for a reason,” said Delk. “And when they say you can’t take pictures that record the voting process, then there is a subcategory of pictures that you can take.”
§3-4A-23:Persons prohibited about voting booths; penalties:
Excepting election officials acting under authority of sections nineteen, twenty and twenty-two of this article in the conduct of the election, and qualified persons assisting voters pursuant to section twenty-two of this article, no person other than the voter may be in, about or within five feet of the voting booth during the time the voter is voting at any election. While the voter is voting, no person may communicate with the voter in any manner and the voter may not communicate with any other person or persons. No person may enter a voting booth with any recording or electronic device in order to record or interfere with the voting process. Any conduct or action of an election official about or around the voting booth while the voter is in the process of voting, except as expressly provided in this article, is a violation of this section. Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail not more than twelve months, or both fined and confined.
A Modern Problem
This question of photos in the ballot booth isn’t a totally new problem, though it is new to this era of communication, texting, and selfies. New Hampshire tried to ban taking selfies with completed ballots a few years ago. A federal court overturned the state’s ban, ruling that the images are a constitutionally protected form of speech. Like officials in New Hampshire, Secretary Tennant cites concerns about potential vote-buying and voter intimidation.
“We have to look beyond just the moment of taking the picture and look at any unintended consequences,” Tennant said.
Delk says documenting problems as well as referring to notes and last-minute research on candidates are all reasons people shouldn’t be stripped of cell phones. And what if posting a selfie on social media reminds or even inspires another West Virginian to hit the polls in a state with record low voter turnouts? Tennant said: Take the picture right outside instead, or risk a $1000 fine and possible jail time.
After discussions with the West Virginia Secretary of State’s office, Delk removed his photo and replaced it with a drawing. Since then measures have been taken to correct the Ohio County ballot. And Secretary Tennant says while she’s willing to discuss changes lawmakers may want to make to state code, at this point her interpretation of the law is that recording devices are not allowed in the voting booths.