Libertarian challenging NC ballot selfie ban makes final pitch before Oct. 7 hearing

The Libertarian voter challenging North Carolina’s ban on ballot selfies in federal court filed her final brief before an Oct. 7 hearing. Susan Hogarth argues that the ban violates her constitutional rights.

Hogarth is asking US District Judge Louise Wood Flanagan to issue an injunction blocking the ban. Flanagan will consider the injunction request during the hearing next month in New Bern.

“Ballot selfies combine two cherished American freedoms — voting and political expression,” according to a brief Hogarth’s lawyers filed Tuesday. “As the First Circuit and several district courts have held, ballot selfies are core political speech that the State cannot ban without supplying concrete evidence of their harm to compelling state interests.”

“But North Carolina comes to the court empty-handed,” the court filing continued. “Defendants’ ban is a content-based regulation of speech, so they must provide evidence showing it is narrowly tailored to achieve a compelling government interest. They establish neither. North Carolina’s Ballot Selfie Ban — like bans in New Hampshire, Georgia, Indiana, and Colorado — thus violates the First Amendment and should meet the same fate: an injunction.”

Hogarth is the Libertarian candidate in state Senate District 13. She faces Democratic Sen. Lisa Grafstein and Republican candidate Scott Lassiter. Hogarth is suing state and local elections officials, along with Wake County District Attorney Lorrin Freeman.

“Contrary to their attempts to distance themselves from the laws they enforce, each of the Defendants has a tangible and legally recognized link to enforcing the Ban and to Plaintiff Susan Hogarth’s harm,” Hogarth’s lawyers wrote.

“The County Board admits to investigating and reporting violations of the Ban. The District Attorney and Attorney General admit to prosecutorial authority for the same. As Hogarth has taken ballot selfies and intends to continue doing so, she is squarely in the statute’s sights, and the enforcement letter she received threatening prosecution for a past ballot selfie removes any doubt,” the court filing continued. “This Court should uphold the First Amendment and enjoin the Ban.”

Defendants filed paperwork last week urging Flanagan not to issue an injunction.

Freeman declared she would not charge Hogarth with a crime for taking a “ballot selfie” at the polls this fall.

“I have not threatened Hogarth with criminal prosecution for taking a ‘ballot selfie,’ nor have any members of my staff,” Freeman declared in a document filed Sept. 17.

Freeman noted her “discretion when to prosecute” criminal cases. “I will not prosecute Hogarth under N.C. Gen. Stat. 163-166.3(c) for photographing, videotaping, or otherwise recording an image of her own voted official ballot in the voting enclosure, provided said photograph, video, or recording does not include the image of any other person or another person’s voted ballot.”

The Wake DA also declared she would not prosecute Hogarth for “allowing her own ballot to be seen by any person,” “disclosing her own ballot,” or “taking past or future photographs of her own completed ballot.”

In a separate filing, Freeman objected to Hogarth’s request for an injunction. “Hogarth provides no evidence DA Freeman has ever prosecuted a ‘ballot selfie’ case, and cannot refute DA Freeman’s declaration that she does not intend to prosecute conduct such as that pled by Hogarth while the Court considers the constitutionality of the challenged statutes,” wrote state Special Deputy Attorney General Elizabeth Curran O’Brien, who represents Freeman.

The State Board of Elections also lodged objections to Hogarth’s proposed injunction.

“After deliberately violating North Carolina election laws during the primary election cycle earlier this year, Plaintiff now challenges five longstanding provisions of North Carolina law designed to protect the privacy of the voter and to prevent voter intimidation and vote buying,” state lawyers wrote. “In Plaintiff’s view, those laws infringe on her free-speech rights by prohibiting her from disseminating a photograph of her voted ballot.”

“Plaintiff is both wrong on the merits and too late in seeking her injunction before the November 2024 general election,” the elections board’s court filing continued. “The laws that Plaintiff challenges have been part of the North Carolina General Statutes for decades, with the oldest having been enacted in 1929. She violated those laws months ago, during the March 2024 primary, and in that same month, she was warned of the potential consequences.”

“Yet she chose to wait until the eve of the 2024 general election to file suit, asking for preliminary injunctive relief that will not come until North Carolinians are already voting. For this reason alone, the Court should deny this motion,” the state elections board’s lawyers wrote.

The Wake County elections board filed a separate document objecting to an injunction.

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

Ballot selfies are illegal in 14 states, including North Carolina, according to FIRE. 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.

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 US 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.

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