Could a South Carolina voter film a marked ballot and post it online?

Plain-English summary

A senator asked about an absentee voter who allegedly recorded a marked presidential-primary ballot and posted the video online. The Attorney General concluded in 2012 that South Carolina's ban on allowing another person to see one's ballot could apply regardless of whether the disclosure occurred in person or through a phone, camera, or online video. In the AG's view, a voter who exposed the ballot with apparent intent to show how the voter was about to vote or had voted could be found to violate the state's ballot-secrecy rules.

The opinion did not determine that the reported voter committed an offense. It said the local prosecutor had discretion to evaluate the evidence and decide whether prosecution was justified in that case.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did a video of a marked ballot fall outside the old ballot-secrecy rule? A: The AG said the medium did not remove the ballot from the rule. Showing a ballot through a recording or other device could amount to allowing another person to see it.

Q: Was every photograph of a ballot automatically a violation? A: The opinion focused on a voter allowing the ballot to be seen with apparent intent to reveal a vote. It did not decide every possible photograph or recording scenario.

Q: Did the AG order charges against the absentee voter described to it? A: No. It left the case-specific decision whether to prosecute to the local prosecutor.

Background and statutory framework

The opinion read §7-25-100's ballot-visibility prohibition with South Carolina's constitutional secret-ballot protections. It reasoned that secrecy served the integrity of the election and applied to disclosure through any medium. The requester had described a particular online video, but the AG gave a general legal interpretation and deferred individual enforcement judgment.

Citations and references

Statute: §7-25-100.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-8-2012/
• Original PDF: https://www.scag.gov/wp-content/uploads/2012/05/peeler-h-s-jr-os-9440-5-8-12-reproduction-of-an-individuals-voting-ballot.pdf

Original opinion text

ALAN WILSON

A TIORNEY GENERAL

May 8, 2012

The Honorable Harvey S. Peeler, Jr.
Senator, District 14
213 Gressette Senate Office Building
Columbia, SC 29202
Dear Senator Peeler:
By way of background in a letter to this office, you inform us about an alleged incident during the Presidential Preference Primary in which a Cherokee County voter, voting absentee, made a video of his vote and then posted it on YouTube. As you note, S.C. Code Ann. §7-25-1 OO(A) provides, in pertinent part, that
[iJt is unlawful in any election for a voter to: (I) allow his ballot to be seen by a person, except as provided by law ... You request an opinion of this office to address whether §7-25-100 prohibits the reproduction of a ballot by devices such as a cell phone, video camera, camera, or iPad. 1 The State has a legitimate interest in preserving the integrity of its election process. See Florence County Democratic Party by Moore v. Johnson, 281 S.C. 218, 314 S.E.2d 335, 337-338 (1984) [citing Bullock v. Carter, 405 U.S. 134 ( 1972)). Every voter in South Carolina has the right to vote a secret ballot. See Corn v. Blackwell, I9 I S.C. 183, 4 S.E.2d 254 (1939) [holding ballot secrecy was violated when numbering system for ballots and voter sign-in lists could be used to identify a particular voter's ballot]; State ex rel. Birchmore v. State Bd. of Canvassers, 78 S.C. 461 , 59 S.E. 145 (1907) [holding ballot secrecy was violated when voters were required to place their ballots in "for" and "against" boxes that plainly revealed their choice] . In fact, article II, § I, of the South Caro lina Constitution provides that:

Any person violating this provision is guilty of a misdemeanor and, upon conviction, must be fined not more than one hundred dollars or imprisoned not more than one year. See §7-25-1 OO(C).

1

R EMBERT

c. DENNIS B UILDING • Posr OFFICE B ox 11549 • C OLUMBIA, SC 29211-1549 • T ELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

The Honorable Harvey S. Peeler, Jr.
Page 2
May 8, 2012
[a]ll elections by the people shall be by secret ballot, but the ballots shall not be counted in secret. The right of suffrage, as regulated in this Constitution, shall be protected by laws regulating elections and prohibiting, under adequate penalties, all undue influence from power, bribery, tumult, or improper conduct. In addition, article II , § 10, of the South Carolina Constitution not only permits, but mandates that the Legislature to regulate and provide for elections. Among those things required is that the Legislature " .. . insure secrecy of voting .. ." 2 Pursuant to §7-1 3-130, the Legislature has provided that "the secrecy of the ballot shall be preserved at all times." Ultimately, this secrecy requirement preserves the integrity of an election and its results, which is critical to our democratic form of government. Cf. George v. Municipal Election Commission of City of Charleston, 335 S.C. 182, 516 S.E.2d 206 ( 1999) [finding the use of ballots that are not designed to be folded violates the constitutional and statutory right to a secret ballot] ; State ex.rel. Edwards v. Abrams, 270 S.C. 87, 240 S.E.2d 643 (1978) [holding statute which would allow husband and wife to enter a voting booth together and discuss their ballot is unconstitutional in violation of constitutional provisions regarding secrecy of voting]. The criminalization of ce1tain activities, among them a voter allowing his/her ballot to be seen by a person, clearly suggests Legislative intent in §7-25-100 not just to protect electors from any treatment of the ballot inconsistent with the right to vote, but also to serve the broader purpose of imposing ballot secrecy. It is thus the opinion of this office that any voter who allows his/her ballot to be seen, through any medium, with the apparent intention of letting it be known how he/she is about to or has voted, may be found to have violated the constitutional and statutory mandate for ballot secrecy in this State. We note, however, that this office has consistently advised that the judgment call as to whether to prosecute a particular individual is warranted or is on sound legal ground in a particular case is a matter within the di scretion of the local prosecutor. Ops. S.C. Atty. Gen., April 6, 2011 ; October 29, 2004; April 20, 2004; February 3, 1997. The prosecutor is the person on the scene who can weigh the strength or weakness of an individual case. Ops. S.C. Atty. Gen., June 28, 20 I I ; August 14, 1995. Thus, while this office has provided to you the relevant law in this area, we must defer to the prosecutor' s ultimate judgment as to whether or not to prosecute an individual in question in a given case under particular circumstances.

2The provision reads as follows:
[t]he General Assembly shal I provide for the nomination of candidates, regulate the time, place and manne r of elections, provide for the administration of e lections and for absentee voting, insure secrecy of voting, establish procedures for contested elections, and enact other provisions necessary to the fulfillment and integrity of the election process.

The Honorable Harvey S. Peeler, Jr.
Page 3
May 8, 2012

If you have any further questions, please advise.
Very tru ly yours,

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N . Mark Rapoport
Senior Assistant Attorney General

REVIEWED AND APPROVED BY:

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fRO bert D . Cook
Deputy Attorney General