Defending Ban, NY Calls|Ballot Selfies a ‘Fad’

MANHATTAN (CN) — With a week until Election Day, New York City and state lawyers are contemplating what they called a "nightmare" scenario of long lines and polling-place electioneering, not to mention a stream of divisive Facebook posts.

Protecting New York from this doomsday vision are ballot-selfie bans, New York's lawyers said.

Endlessly debated on social media and by state legislatures and federal courts, the controversy arrived at a Southern District of New York courtroom for a more than hour-long hearing on Tuesday.

Three New York voters challenged state and municipal laws criminalizing the practice of photographing and publishing their ballots online on Oct. 26, a mere 13 days before Election Day.

After an extended courtroom wrangle, U.S. District Judge Kevin Castel said he will decide this week whether to issue a preliminary injunction to these voters, led by Manhattanite Eve Silberberg.

If the judge's sharp questioning is any indication, the plaintiffs should not start practicing their best smartphone poses for Election Day.

New York Assistant Attorney General John Michael Schwartz argued that the lawsuit came too late for the court to order a change.

"Yes, the courts are going to have to iron [ballot-selfie policies] out, but to make that change the week before a presidential election is going to cause havoc," he said.

About 19 states allow voters to post ballot selfies on social media, and federal courts have struck down laws banning the practice in Michigan, Indiana and New Hampshire, whose statute was overturned by the First Circuit. The Sixth Circuit ruled this past week that it won't hear the Michigan case until after the election.

Meanwhile, California will officially repeal its ban on Jan. 1, though the ACLU sued Monday for an immediate de facto effective date.

The New York City Law Department's attorney Stephen Edward Kitzinger said that the timing is not right for Manhattan Federal Court to follow suit.

It has been nearly a decade since the iPhone came out in 2007, leading to an explosion of handheld cameras that allowed more than a billion people worldwide to take pictures from the phones three years later.

Now that Big Apple has trained 35,000 poll workers and 2,500 police officers in crowd control for the anticipated high-turnout election, the time for a constitutional challenge has passed, Kitzinger argued.

The plaintiffs touted ballot selfies as an antidote to comments by "one of the candidates of the election being rigged," but Kitzinger noted that Donald Trump first made those remarks in August.

Despite painting the smartphone explosion as yesterday's news, Kitzinger also depicted ballot selfies as a passing trend.

"It's a fad," he said. "Fads do not give rise to constitutional rights."

Attorney Leo Glickman, seeking to decriminalize that practice for the Brooklyn-based firm Stoll, Glickman & Bellina, bristled at the description.

"Facebook and social media is not a fad," he said. "It is a forum of protected speech."

New York's prohibition on ballot selfies is ostensibly aimed to prevent poll-site electioneering, vote-buying and voter intimidation.

But Glickman noted that absentee and military voters often photograph their ballots in the privacy of their homes or overseas.

Even those who photograph their ballots in a booth usually post the photograph later.

"This [law] seeks to regulate behavior outside the polling site," he said.

Castel appearing skeptical that he should take action so close to an election.

Imagining one hypothetical voter, the judge described how lines could be held up by even by "well-meaning people who don't use their cellphones every day."

"Okay, I took the photo," Castel said, imitating this vote. "Now, I just want to take a very short video."

Kitzinger, the city lawyer, pointed out that photographs and videos are banned in federal courthouses, like the one where today's arguments took place.

Seeing more litigation in the future on that topic, Castel quipped to laughter in the courtroom: "That's next week's case."

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