The issue caused a stir on social media last week, after the Denver District Attorney’s Office issued a news release reminding voters that taking a photo of a completed ballot and showing it to others – including on social media – is a misdemeanor crime, punishable by up to one year in jail and a $1,000 fine.
Some criticized the DA’s office for focusing on trivial issues. The DA’s office said the reminder was meant to be “friendly,” pointing out that it is not responsible for the law – which dates to the 1890s – and remains on the books.
State Sen. Owen Hill, R-Colorado Springs, is seeking to quickly block the law for the remainder of the election season. He said the Legislature could then attempt to address the issue in the next session. The case also seeks a decision that the law is unconstitutional, as well as permanent relief from the law.
“I want to celebrate this political process and the free speech we have in this country,” Hill told The Durango Herald, moments after filing the lawsuit.
Hill is a co-plaintiff in the case with Scott Romano, an 18-year-old University of Denver student who is participating in his first election.
Romano, a Democrat, sits on the other side of the political spectrum from Hill.
“It’s important to note that some issues, like this when it comes down to constitutionality, are not political issues,” Romano said. “Owen and I can disagree on pretty much everything else.”
Romano used social media to organize student walk-outs in 2014 when opposition was raised to controversial curriculum decisions by the school board in Jefferson County.
“It’s really important that we are allowed our First Amendment right, showing people how we vote and showing people our excitement about voting,” Romano said.
The lawsuit was filed against Secretary of State Wayne Williams and Attorney General Cynthia Coffman – both Republicans – in their official capacities.
“Speech about how one votes in an election rests at the core of political speech protected by the First Amendment. One particularly vivid way to speak about a decision to vote or not vote is to later share a picture of a marked ballot that has been turned in,” the lawsuit states. “Taking a picture of a voted ballot is increasingly popular. Unfortunately, Colorado has an outmoded statute making it a crime.”
The lawsuit goes on to call it a “classic case of an overbroad law that restricts vast swaths of legal, protected speech in the name of preventing discrete bad acts.”
The Libertarian Party of Colorado last week requested that Coffman and the Denver DA’s office “publicly affirm” that the offices would not prosecute violations of the law. The party has also threatened to file a lawsuit.
Similar laws have been overturned in other states in the name of free speech, including in New Hampshire. A similar lawsuit is pending in Michigan.
The law has been used as a rallying cry for some who fear voter fraud this election, especially in an all-mail election. Supporters of the law argue citizens don’t have the same voting privacy as they did in polling centers.
The 1891 law was said to have been enacted to protect against voters being coerced into voting a certain way by gunmen during the days of the Wild West. It later became a way to protect against mob bosses and abusive husbands who would also try to coerce a certain vote.
The Legislature saw a bill last year that would have reversed the law. But lawmakers in the House wouldn’t entertain hearing the bill past its first committee meeting.
Hill said he hopes the Legislature pays closer attention if a bill is introduced in the upcoming legislative session, which begins in January.
“It’s like so many other things in the political world,” Hill said. “Sometimes people need to have a little more experience with it before they realize exactly what we’re talking about.”