On Monday, in a case called Crookston v. Johnson, United States District Judge Janet T. Neff issued a preliminary injunction enjoining the State of Michigan from enforcing its law that purports to prohibit voters from photographing their completed ballots. As I wrote earlier this week, Judge Neff concluded that the law likely violates the First Amendment of the United States Constitution, and that the plaintiff had demonstrated a likelihood of success on the merits of his lawsuit.
Today, in a 2-1 split decision, the United States Court of Appeals for the Sixth Circuit issued a stay of Judge Neff's preliminary injunction, reinstating Michigan's "ballot selfie" ban for this November's election. The two-judge majority questioned why the plaintiff had waited so long to file his lawsuit, and suggested that Michigan's "ballot selfie" ban might be justified for the purpose of preventing vote-buying and voter-intimidation schemes. The majority doubted that the ban significantly impinges on the plaintiff's First Amendment rights. In addition, the majority incorrectly stated that "there is no risk that [the plaintiff] or anyone else will be fined or face jail time for sharing photographs of their ballots." On the contrary, willfully disobeying the Michigan Secretary of State's instructions pertaining to photography in polling places constitutes a misdemeanor, MCL 168.931(1)(h), and is punishable by a fine of $500 or up to 90 days in jail, MCL 168.934.
In dissent, Chief Judge R. Guy Cole observed that the majority had misapplied the Sixth Circuit's requirements for granting a stay pending appeal. He also wrote that Michigan's "ballot selfie" ban violates the First Amendment and that the State of Michigan had failed to present any evidence of vote buying or voter intimidation. Lastly, Judge Cole pointed out that, irrespective of whether Michigan's "ballot selfie" ban is content-neutral, it fails to withstand intermediate-scrutiny review because it is not narrowly tailored to advance a significant governmental interest.
Barring reconsideration of the Sixth Circuit's opinion or any unlikely action by the United States Supreme Court, Michigan's "ballot selfie" ban will remain in place for this year's general election. The plaintiff will still have the opportunity to present his constitutional arguments to the courts, but will have to wait until after the November election to do so.