N.C. elections board objects to speeding up ballot selfie lawsuit

he North Carolina State Board of Elections opposes a Libertarian voter’s proposal to expedite a hearing in her federal lawsuit challenging the state’s ban on ballot selfies.

The board filed a court document Friday objecting to Susan Hogarth’s request for a hearing by Oct. 15 and a decision by Oct. 29 about her request for an injunction in the case.

“Good cause does not exist to expedite consideration of Plaintiff’s motion for a preliminary injunction,” wrote state lawyers representing the elections board. “Plaintiff’s alleged need for the Court to expedite consideration is based upon an emergency of her own making. The laws she challenges have existed for decades, with the North Carolina General Assembly having passed the last two of those laws nearly twenty years ago.”

Hogarth, a Libertarian candidate for state Senate, filed suit based on a letter state elections officials sent her after she posted a photo with her primary election ballot on social media.

“[A]ccording to Plaintiff, she took and shared her ballot selfie, and the State Board sent her the letter about that photograph, in March 2024. Yet, she waited over five months to file her lawsuit and request a preliminary injunction on the eve of voting for the 2024 general election,” the board’s lawyers wrote. “As a candidate in the general election, Plaintiff is, or should be, aware that voting in North Carolina for the 2024 general election starts on September 6, 2024, with the distribution of absentee-by-mail ballots.”

“Under these circumstances, expediting consideration of the preliminary injunction motion is unjustified and unwarranted. It is also unduly burdensome for the State Board. In light of the timing of Plaintiff’s filings, and with voting beginning now in just a week, the agency charged with administering North Carolina’s elections should not have to devote time and divert resources to defending against Plaintiff’s request for a preliminary injunction on an expedited basis,” the court filing continued.

Hogarth’s lawyers responded Saturday. “Missing from the opposition to Hogarth’s motion to expedite is any concern for the constitutional harm North Carolina’s ballot selfie ban poses to Hogarth and North Carolina voters, or even an offer to suspend their enforcement against her to mitigate the urgent need for interim relief before the upcoming election,” they wrote.

The Foundation for Individual Rights and Expression is helping Hogarth challenge the state’s ballot selfie ban.

“After taking a picture of herself with her completed March 2024 primary ballot and sharing it on social media, Hogarth received a letter from the North Carolina State Board of Elections demanding she take down her ballot selfie and threatening her with criminal prosecution,” Hogarth’s lawyers wrote when requesting an expedited hearing in the case. “This November, Hogarth plans to exercise her First Amendment right to take and share a photo of herself in the voting booth with her completed ballot and has a particular interest in doing so because she herself will appear as a candidate.”

Hogarth is the Libertarian candidate in state Senate District 13. She faces Democratic Sen. Lisa Grafstein and Republican candidate Scott Lassiter.

“Hogarth and other voters must know in advance of the election whether they will face the threat of prosecution for taking a ballot selfie,” he lawyers wrote. “This is particularly true for those voting via absentee ballot, as they must mail their ballots in time to be received on Election Day.”

Ballot selfies are illegal in 14 states, including North Carolina. The state ban includes taking a photo with a ballot at an election site and an absentee ballot at home. Breaking the state law can lead to a misdemeanor charge under North Carolina General Statute 163-166.3(c).

Hogarth voted in the Libertarian Party primary in March and shared an image on X/Twitter with a caption criticizing the law.

Despite the threat of possible jail time and fines, Hogarth refused to comply with the State Board of Elections’ order, arguing that people “should be able to show the world how you voted without fear of punishment” in a free society.

“Instead, with the help of the Foundation for Individual Rights and Expression (FIRE), today she’s suing members of the state board and Wake County Board of Elections to have the unconstitutional statutes struck down as they apply to ballot selfies,” FIRE said in a news release.

One in 10 American adults — roughly 26 million people — have taken a ballot selfie at some point in their lives, according to the FIRE release.

“The burden is on North Carolina to prove it has a good reason to ban ballot selfies and that this is the only way to do it,” said FIRE attorney Daniel Ortner. “The First Amendment protects the millions of voters who are proud to show the world that they actually voted for the people and policies they care about.”

The lawsuit asks the court to declare ballot selfies are protected expression under the First Amendment of the U.S. Constitution.

The suit states that Hogarth has not removed her March 5 post and has no plans to do so. In fact, she plans to share another photo when she votes this fall.

According to the NCSBE website, voters are allowed to have phones or electronic devices with them while voting as long as those devices are not used to photograph or video a ballot.

“Photographing a marked ballot is illegal in part because such photographs could be used as proof of a vote for a candidate in a vote-buying scheme,” the website states.

When Hogarth filed suit, the State Board of Elections said it could not comment on pending litigation but noted it is required to “investigate when necessary or advisable, the administration of elections laws, frauds, and irregularities in elections.”