Sixth Circuit Says Plaintiff Has Standing for Preenforcement Challenge to State Ballot Self Ban

The Sixth Circuit ruled that a plaintiff had standing to lodge a pre-enforcement challenge to Ohio's criminal ban on ballot selfies. The ruling sends the case back to the district court for proceedings on the merits--whether the ban violates the First Amendment.

The court ruled that a plaintiff who took a ballot selfie and wished to publicize it, but didn't, had standing to challenge Ohio's law, because, among other things, she demonstrated a "credible threat of enforcement." The court explained:

On this record, an individual deciding whether to display a photograph of his or her marked ballot must do so in light of the following: a law that punishes revealing one's marked ballot with imprisonment, repeated statements by Defendants that posting photographs of a marked ballot is illegal, no evidence that Defendants have publicly disavowed these statements, and at least one past instance in which the Board has ordered an individual to remove a ballot from display. Under these circumstances, [the plaintiff] demonstrates more than a "subjective apprehension and a personal (self-imposed) unwillingness" to post a ballot photograph. Therefore, she has alleged an injury in fact at the summary judgment stage.