By Jordan Meadows
Staff Writer
A federal appeals panel heard oral arguments on Tuesday in a Wake County woman's challenge to North Carolina's ban on "ballot selfies," weighing whether the state's restrictions on photographing marked ballots violate the First Amendment.
Susan Hogarth, a Raleigh native and the 2024 Libertarian candidate for state Senate District 13, sued members of the Wake County Board of Elections and the State Board of Elections in federal court after posting a selfie with her completed primary ballot on X in March 2024.
The State Board of Elections sent her a letter roughly two weeks later warning that the post violated state law and demanding she take it down; under North Carolina statute, photographing a voted ballot is a Class 1 misdemeanor punishable by up to 120 days in jail and a fine.
Represented by the Foundation for Individual Rights and Expression (FIRE), Hogarth argues the law criminalizes core political speech protected by the First Amendment. She has said she posts the photos partly to promote Libertarian candidates, partly to encourage voting generally, and partly to protest the law itself.
The case has already produced one skirmish inside a polling place: Armed with an October 2024 court order from U.S. District Judge Louise Flanagan, she was allowed to photograph her ballot alone without fear of prosecution. Hogarth took several ballot selfies during early voting that October, including photos of both sides of her marked ballot and of herself holding it up inside the booth.
According to court filings, a Wake County election official stationed about 10 feet away approached her as she took her final photo and told her, "You cannot take a picture of your ballot; you need to delete that, please."
Hogarth told the official a court order protected her; the official asked her to wait, stepped away to call the county elections board, and returned roughly two and a half minutes later to confirm she was in the clear.
Hogarth's attorneys have said the confrontation left her "uncomfortable and anxious" despite the court order, and argued in filings that the interaction would chill an ordinary voter from taking or sharing similar photos.
Flanagan ultimately ruled against Hogarth in March, upholding the five state statutes that make up the ballot selfie ban in a 15-page order. She found the state's interest in preventing vote-buying and voter coercion justified the restriction even without documented instances of ballot selfies being used in such schemes.
"Common sense and logic support the proposition that photographs of voted ballots or voters, taken within voting booths, create opportunities for abuse through vote-buying and coercion," Flanagan wrote, adding that defendants were not required to "adduce specific factual evidence that the statutes advanced its interests."
At Tuesday's argument, FIRE attorney Jeff Zeman told the three-judge panel that the law reaches well beyond polling place conduct.
"The only thing North Carolina's ballot selfie ban does is criminalize otherwise lawful speech," Zeman said, noting the restriction also bars voters from photographing a completed absentee ballot in the privacy of their own home.
He argued the ban amounts to unconstitutional content-based regulation that fails strict scrutiny, the most exacting standard of judicial review, because the state has never shown the law actually prevents the vote-buying or coercion schemes it claims to target.
"This is speech about the election; not part of the election," Zeman said. "Expression about elections and referenda is the type of speech indispensable to decision-making in a democracy, and thus at the heart of the First Amendment's protection."
Deputy Solicitor General Thad Eagles, representing the State Board of Elections, its investigator and Executive Director Sam Hayes, countered that the law protects the secrecy of the ballot rather than the content of anyone's speech.
"North Carolinians are free and encouraged to tell everyone they want who they voted for and why in any number of different ways," he said. "The state's concern is not with the message here. It's not about the communication; it's about the probative effect of a picture of a marked ballot."
The state's legal briefs have also raised a more pointed hypothetical, arguing the law protects voters who might otherwise face covert pressure—including "a person experiencing domestic violence who, though not explicitly threatened, fears what will happen if their abuser learns that they voted against the abuser's preferred candidate."
U.S. Circuit Judge A. Marvin Quattlebaum Jr., a Trump appointee, pressed Eagles on whether the law's reach outside polling places changes the constitutional analysis, noting the case for restricting absentee ballot photography is less clear-cut.
"There does seem to be ways these statutes apply outside of the polling place," Quattlebaum said, asking directly, "Is the ballot itself a forum?"
Eagles maintained that allowing widespread ballot-photo sharing could pressure voters away from voting their genuine conscience. U.S. Circuit Judges Allison Rushing, also a Trump appointee, and DeAndrea Gist Benjamin, a Biden appointee, rounded out the panel, which did not indicate when it would rule.
Courts have struck down comparable ballot-selfie bans in at least six states, including New Hampshire, Georgia, Indiana and Colorado, while more than a dozen states, including North Carolina, still enforce some version of the restriction.
North Carolina became the first state in the country to begin mailing absentee ballots for the November midterms, meaning the outcome of Hogarth's appeal could still shape what voters are allowed to do with their ballots before Election Day.
