DENVER—With six days until Election Day, a federal district court will decide whether to invalidate a Colorado state law that bans voters from showing their completed ballots to other people.
The law predates the internet, but has become known as a ban on “ballot selfie” because the state interprets it to mean that it’s illegal to post a photo of a filled-out ballot online.
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Courts have struck down similar laws in other states and federal judge Christine Arguello seemed deeply skeptical that Colorado’s law would pass constitutional muster.
Lawyers for the state argued that Colorado believes its law is constitutional.
“Then you have a problem,” Judge Arguello quipped in reply.
Arguments from lawyers for the state and the Denver District Attorney’s office seemed to do more to convince the judge that the law ought to be blocked.
The attorneys defending the 125-year-old law told the court they would not prosecute anyone for violating it unless it a suspect also violated other election laws, which the judge interpreted as “an indication that you believe there is a problem with this law.”
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The judge was also unimpressed when the state said it was unsure it had the authority to tell all 64 counties in Colorado that they should not enforce the law.
Wednesday’s hearing is not meant to decide whether the law will be struck down, but rather to decide whether to grant a preliminary injunction, which would temporarily block the state from enforcing the law as the issue awaits trial.
Injunctions are considered an extraordinary method of addressing legal problems and require the judge to find that the pair of lawsuits against Colorado are likely to succeed.
The judge did rule that the plaintiffs in those cases (which includes a Republican state senator up for re-election) do have standing and a valid concern of their First Amendment rights being violated.
Judge Arguello expressed some reservation about whether the plaintiffs had standing, but ultimately was swayed by a press release issued recently by the Denver District Attorney’s office sent out a press release warning voters that taking photos of completed ballots is illegal in Colorado.
The plaintiffs argue that sort of public announcement from a law enforcement office has a chilling effect on voters who wish to exercise their First Amendment right to free speech by sharing their completed ballots on social media.
One plaintiff is a defense attorney who admitted on the witness stand that she broke the law by posting a ballot selfie. She later pulled it down for fear of being prosecuted or risking her license to practice law in Colorado.
After hearing more arguments in the case throughout Wednesday afternoon, the judge announced a ruling would not be made Wednesday. The hearing will resume Thursday morning.
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