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DETROIT (AP) — An appeals court ruled Friday that Michigan can prohibit voters from taking selfies with their completed ballots in the Nov. 8 election.
The 6th U.S. Circuit Court of Appeals in Cincinnati voted 2-1 against a lower court's ruling that called Michigan's photo ban a free-speech violation in the era of cellphone cameras and instant social media posts.
Joel Crookston, 32, of Portage in western Michigan, took a "ballot selfie" in 2012 while voting for a write-in candidate for Michigan State University trustee. He filed a lawsuit last month in federal court in Grand Rapids after learning that a picture of a ballot could get him in trouble. Michigan's ban on exposing completed ballots has been in place since 1891.
"Timing is everything," Appeals Court Circuit Judge Jeffrey Sutton wrote in Friday's ruling. "Crookston's motion and complaint raise interesting First Amendment issues, and he will have an opportunity to litigate them in full — after this election."
But with just days left before voters go to the polls, "we will not accept his invitation to suddenly alter Michigan's venerable voting protocols, especially when he could have filed this lawsuit long ago," Sutton continued.
U.S. District Court Judge Janet Neff had issued a preliminary injunction Monday on behalf of Crookston. State elections officials had argued that selfies will lead to delays at polling places as voters take pictures — or avoid getting into another voter's shot.
Federal judges have struck down bans on selfies in New Hampshire and Indiana, and rules have been changed in places like California and Rhode Island. There are laws against sharing any photo of your ballot in 18 states, while six other states bar photography in polling places but do allow photos of mail-in ballots.
Michigan's law declares that "violators will face one penalty: the vote they wanted the world to see will not count," according to the appeals court.
Chief Judge Guy Cole wrote in his dissent that the other two appeals court judges relied on the proximity of the Nov. 8 election and the state's concerns about conveying changes in policy to poll workers.
The Associated Press left phone messages Friday night seeking comment from Michigan Secretary of State Ruth Johnson's office and from Crookston.
Crookston's attorney, Stephen Klein, said they're considering their options.
"I think the dissent could not have said it better, that the majority of the court put administrative convenience above individual rights," Klein told the AP.
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