On Ballot Selfies: No Constitutional Question Here

Jake Edmiston writes in the National Post today about “ballot selfies”: the practice of taking a picture of a marked ballot: http://news.nationalpost.com/news/canada/dont-get-any-ideas-from-the-u-s-ballot-selfies-arent-allowed-in-canada-elections-officials-say

This practice is clearly prohibited in Canada under section 164(2)(b) of the Elections Act.

In the article Mr. Edmiston raises the question of whether this prohibition is an unconstitutional restriction on freedom of expression. In Canada, there is no credible argument to support this view, and no credible group or individual advancing the cause. The quotations and examples used by Mr. Edmiston to build up a perception of uncertainty actually show how settled this issue is.

The article states that “constitution lawyers say the Canadian law could be open to a legal challenge similar to the controversial court case in New Hampshire earlier this month.” This sentence reveals nothing. All laws are “open” to a legal challenge.

This article may leave the impression that the constitutionality of this provision is unclear, but this is not an opinion to be relied upon.

Professor Dawood says it best that “a court would likely find that the ban is reasonably justified in a free and democratic society.” That is about as definite a statement as you are going to get from a lawyer.

There is no value in being able to show who you voted for. What is to be gained in terms of expression from tweeting a photo of your ballot, as opposed to just tweeting who you voted for? It is so trivial that a court might not even consider this a contravention of freedom of expression.The harm in showing marked ballots is real, and is a direct threat to the integrity of our elections. As correctly noted in the article, showing marked ballots allows for vote-buying and intimidation/coercion to take place. It is a step back two centuries in the evolution of elections.The case of Parker Donham does nothing to create any uncertainty to the reality that if you photograph and share a marked ballot you run the risk of a fine and potential jail time.

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