California's ban on sharing photographs of marked ballots violates voters' First Amendment right to freedom of speech by preventing them from expressing their political views, the American Civil Liberties Union said in a lawsuit.
The suit filed Monday in federal court seeks an injunction blocking the state from enforcing the ban on so-called ballot selfies in the upcoming election. A judge is set to hear arguments Wednesday.
The ACLU acknowledged that the state has not previously enforced the ban, and noted that the Legislature has passed a law allowing photographs of ballots, including those taken at polling stations, to be shared.
But the ACLU said the new law won't go into effect until next year, so voters need clear guidance to prevent confusion that could have a "chilling effect" on their speech in the Nov. 8 election.
The group wants people to be able to take photos at polling stations and at home or elsewhere if they've received a vote-by-mail ballot and post them online or share them with friends and family.
"People increasingly use photographs of their marked ballot as a way to express their support for candidates and issues," Michael Risher, a senior staff attorney for the ACLU of Northern California, said in a statement. "This is core political speech at the heart of the First Amendment."
In a court document responding to the suit, the secretary of state's office said it was not taking a position on the First Amendment claim.
Instead, the office challenged the suit as late and said an injunction just days before the election would be disruptive, "potentially causing voter and poll worker confusion, delays at the polls, and inconsistent interpretation of the law at the thousands of polling locations across the state."
Secretary of State Alex Padilla said in a statement that he supported the new law allowing ballot selfies and would abide by any decision the court makes.
There are laws against sharing any photo of your ballot in 18 states , while six others bar photography in polling places but do allow photos of mail-in ballots.
Federal judges have struck down bans on selfies in New Hampshire and Indiana, and a lawsuit filed last month challenged New York state's ban.