Silberberg v. Board of Elections of the State of New York

Since 1890, New York election law has ensured ballot secrecy by prohibiting voters from showing their marked ballots to others. The ballot-secrecy laws were initially enacted to counteract rampant voter coercion and vote buying by making it impossible to confirm how someone voted in the secrecy of the ballot box. The Board of Elections of the State of New York (BOE) (defendant) leveraged New York’s ballot-secrecy laws to prohibit voters from taking and posting ballot selfies (the ballot-selfie ban), meaning photographs of marked ballots. Eve Silberberg (plaintiff) sued the BOE to enjoin enforcement of the ballot-selfie ban, arguing that it violated her First Amendment right to free speech. At a bench trial, Silberberg argued that the ballot-selfie ban was unconstitutional because it was not narrowly tailored to fulfill New York’s compelling interest in preventing voter coercion, vote buying, and other forms of voter fraud. Silberberg argued that the ballot-selfie ban should apply only to voters who took and posted ballot selfies for fraudulent purposes. The BOE countered, arguing that the ballot-selfie ban was necessary to prevent future voter coercion and voter fraud and to ensure the ongoing secrecy of ballots in the age of social media. To support the BOE’s position, the BOE presented substantial evidence of historical and contemporary voter-fraud schemes, including one that was the subject of a pending litigation.