SAN FRANCISCO (CN) — Calling a soon-to-expire law that bans ballot selfies unconstitutional, the American Civil Liberties Union sued California on Monday to ensure voters can legally take photos of their filled-in ballots this election season.
In September, Gov. Jerry Brown signed a repeal of the state's ban on taking and distributing photos of completed ballots, but the law doesn't take effect until Jan. 1.
The California Secretary of State's office sent a memo to election officials on Oct. 12, stating that its "guidance will remain unchanged until Jan. 1, 2017, when the new law goes into effect."
But the ACLU wants a temporary restraining order and injunction to block election officials from prohibiting or prosecuting voters who shoot and post photos of their filled-in ballots.
"In the absence of court-ordered relief, plaintiffs will suffer imminent, immediate, and ongoing irreparable harm in the form a chilling of their free speech rights," the ACLU claims in its 7-page complaint.
The "ballot selfie" issue was thrust into popular culture last week when music star Justin Timberlake shared an Instagram photo of himself at a voting booth in Memphis with his electronic ballot behind him.
Timberlake later deleted the photo after he realized he could face legal consequences because Tennessee bans all photos and videos in polling places.
The Associated Press reported last month that 18 states have laws on the books banning ballot selifes, while another 13 states have laws that are mixed or unclear on the issue.
In its 7-page complaint, the ACLU notes that one of its members, Allen Asch, who chairs the group's Sacramento chapter, regularly uses Instagram, Facebook and Twitter to share his political opinions with others.
"Asch, who is a lawyer and a member of the California Bar, understands that the California Elections Code bars voters from showing their marked ballots. For past Election Day social media posts, he has avoided including his marked ballot in photos because of this provision. But he would like to share a photo that shows how he voted on statewide initiatives this year because he believes a photo makes a stronger statement than simply posting his opinions," the complaint states.
The Secretary of State's Office responded to the lawsuit in a document filed in federal court late Monday, saying the ACLU failed to justify why it waited until eight days before the election to file this suit.
Secretary of State Alex Padilla urged the judge not to issue an injunction that would "require the retraining of thousands of poll workers just days before the election and that would immediately become moot based on a change in state law that takes effect on Jan. 1, 2017."
A hearing on the ACLU's motion for an injunction is set to take place Wednesday morning in U.S. District Judge William Alsup's courtroom in San Francisco.
In a statement released Tuesday, Padilla said he supports the state's decision to overturn the "outdated" ballot selfie ban, but added his office is also obligated to enforce all election laws currently on the books.
"While sympathetic to efforts to accelerate the use of this new form of political expression for the November 2016 election, state law currently prohibits it and only a court of law can authorize such a change, especially one proposed on the eve of the election," Padilla said. "In the meantime, voters can still take a selfie of their 'I Voted' sticker."
Padilla added that his office stands ready to comply with any decision the court hands down on the issue.
The lawsuit was filed by three ACLU chapters representing Northern California, Southern California and San Diego and Imperial Counties.
The ACLU is represented by Michael Reisher, senior staff attorney for ACLU of Northern California.
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