Can Virginia voters take photos or selfies of themselves with their ballot inside a polling place, and can they use phones to get voting help from someone outside?

Plain-English summary

The Goochland and Isle of Wight electoral board secretaries asked three questions about a June 2016 regulatory amendment from the Virginia State Board of Elections. The amendment (in 1 VAC 20-60-30 through 1 VAC 20-60-50) added one new sentence: "Voters are permitted to use cameras or audio or visual recording devices inside the polling place."

Attorney General Mark R. Herring concluded:

(1) The regulation does not conflict with state law. The Code already restricts the news media's use of cameras (§ 24.2-604(J)) and bars "authorized representatives" of parties or candidates from using handheld devices to "capture a digital image" inside the polling place (§ 24.2-604(C)). The Code does not address voter photography. Under the principles in Halifax Corp. v. Wachovia Bank, 268 Va. 641, 654 (2004), the legislature's choice to regulate some classes but not voters cannot be read as a silent prohibition on voters.

(2) Voters cannot use cameras or recording devices to communicate with someone outside the polling place for voting assistance. Section 24.2-649 sets out the only permitted methods of voter assistance, and they require a written request from the voter and a signed statement from the assistant, with officer-of-election recordkeeping. Communicating with an outside person via camera or audio device is not one of those methods. Doing so would violate § 24.2-1006, which bars any person from directly or indirectly advising or assisting a voter on how to cast a ballot after the voter enters the prohibited area, except as permitted under § 24.2-649.

(3) Voters may photograph themselves or their fellow voters, and may photograph their own ballot, within the polling place. The Code does not prohibit voters from divulging how they voted. Sections 24.2-1011 (no carrying the ballot away; vote only the official ballot) and 24.2-607 (constitutional ballot secrecy) do not amount to a general photography ban. Because the news media is allowed to film voters and ballots within limits, reading the Code to prohibit voter photography entirely would be incongruous. All other statutory and regulatory rules on polling-place conduct still apply, and officers of election may take action under § 24.2-604(E) if behavior impedes orderly conduct or impinges on another voter's secret-ballot rights.

Currency note

This opinion was issued in 2016. 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.

Virginia election law and State Board of Elections regulations have been amended multiple times since 2016. Some states have adopted ballot-selfie statutes; others have litigated them. Before relying on this opinion for a current election, check the current text of §§ 24.2-604, 24.2-607, 24.2-649, 24.2-1006, and 24.2-1011 and current Virginia Administrative Code provisions. Federal litigation in other states on First Amendment grounds may also affect the landscape.

Background and statutory framework

The Virginia State Board of Elections adopted regulatory amendments in June 2016 to 1 VAC 20-60-30 through 1 VAC 20-60-50, adding the sentence "Voters are permitted to use cameras or audio or visual recording devices inside the polling place." The electoral board secretaries asked the AG to evaluate whether that regulation was consistent with state law and how it interacted with voter-assistance and ballot-secrecy rules.

The general polling-place conduct statute, § 24.2-604, makes a list of behaviors unlawful for "any authorized representative, voter, or any other person in the room": hindering or delaying a voter, exhibiting campaign material, soliciting or influencing voting, hindering an officer, being in a position to see another voter's marked ballot, or otherwise impeding orderly conduct. Subsection (E) lets officers require violators to remain outside the prohibited area around the polling place entrance.

Section 24.2-604(C) addresses "authorized representatives" of parties and candidates inside the polling place. They may use a handheld wireless communications device but "shall not be allowed to use such a device to capture a digital image inside the polling place or central absentee voter precinct." Officers may prohibit cellular phones or other handheld wireless devices "if such use will result in a violation of subsection A or D [of § 24.2-604] or § 24.2-607."

Section 24.2-604(J) authorizes news media presence in polling places, with specific permission "to visit and film or photograph inside the polling place for a reasonable and limited period of time while the polls are open," subject to defined limits: no filming or photographing anyone who asks not to be filmed, no filming or photographing the voter or the ballot in a way that divulges how an individual voter is voting, and no filming or photographing the voter list or other voter records in a way that divulges voter information.

On the absence of a voter-photography prohibition, the AG applied a basic statutory-construction inference: when the legislature regulates one class but not another, the courts cannot fill in the missing prohibition. Halifax Corp. v. Wachovia Bank, 268 Va. 641, 654 (2004), holds that "[w]hen the legislature omits language from one statute that it has included in another, courts may not construe the former statute to include that language" because doing so would ignore "an obvious manifestation of a contrary intention" of the legislature. So because § 24.2-604(C) prohibits authorized representatives from capturing digital images and § 24.2-604(J) limits news media filming, but no analogous provision addresses voters, the regulation expressly permitting voter photography is consistent with the Code.

On voter assistance, Article II, § 3 of the Virginia Constitution requires that "[s]ecrecy in casting votes shall be maintained, except as provision may be made for assistance to handicapped voters." Sections 24.2-649 and 24.2-1006 implement that mandate. Section 24.2-649(B) lets a voter who requires assistance by reason of physical disability or inability to read or write be assisted, but only on signed request, with the assistant's signed statement, and with officer-of-election recordkeeping. Section 24.2-1006 makes it unlawful (with penalties) for any person to "directly or indirectly advise or assist any voter as to how he shall cast his ballot after the voter has entered the prohibited area at the polls," except as provided in § 24.2-649. Using a camera or recording device to seek voting help from someone outside the polling place is not a permitted method of assistance under § 24.2-649; it therefore violates § 24.2-1006.

On voters photographing themselves or their own ballots, the AG noted the Code does not prohibit a voter from divulging his or her own vote. Sections 24.2-1011 (no removing the ballot from the polling place; vote only the official ballot) and 24.2-607 (constitutional ballot secrecy) protect against ballot theft and against compelled disclosure of others' votes, but they do not bar a voter from photographing his or her own ballot. The AG also relied on Jones v. Conwell, 227 Va. 176, 181 (1984): "The rules of statutory interpretation argue against reading any legislative enactment in a manner that will make a portion of it useless, repetitious, or absurd." Reading the Code to bar all polling-place photography while specifically allowing news media to photograph voters and ballots would be incongruous.

The AG closed by reminding electoral boards that even with the new regulation, all other polling-place conduct rules remain in force. If voter photography impedes orderly conduct or invades another voter's privacy under § 24.2-607, officers may invoke § 24.2-604(E) to require the offender to leave the prohibited area.

Common questions

Q: Can I take a selfie with my ballot in a Virginia polling place?
A: At the time of this opinion, yes. The State Board's 2016 regulation expressly allowed voters to use cameras and recording devices inside the polling place, and the AG concluded the regulation was consistent with state law.

Q: Can I photograph another voter or their ballot?
A: The AG concluded voters may photograph themselves or fellow voters, but other voters retain a constitutional and statutory right to ballot secrecy. Officers of election may intervene under § 24.2-604(E) if a voter's behavior interferes with another voter's secret-ballot rights.

Q: Can I use my phone in the polling place to ask a friend or relative outside how to vote on something?
A: No. The AG concluded that using a camera or recording device to communicate with someone outside the polling place for voting assistance is not a method authorized under § 24.2-649 and violates § 24.2-1006.

Q: What kinds of voter assistance does Virginia law permit?
A: Only the methods in § 24.2-649: assistance for voters with physical disability or inability to read or write, with a signed request from the voter and a signed statement from the assistant; language assistance under § 24.2-694(C); and voting outside the polling place within 150 feet for voters 65 or older or physically disabled (§ 24.2-649(A)).

Q: What about news media and party representatives photographing the polls?
A: The Code already restricts both. News media may film or photograph within § 24.2-604(J)'s limits. Authorized party or candidate representatives may have a wireless device but may not use it to capture digital images (§ 24.2-604(C)).

Q: Could an officer of election still order me to put away my camera?
A: Yes, if the use crosses into impeding orderly conduct under § 24.2-604(A) or violating ballot secrecy under § 24.2-607. The State Board's permission to use cameras does not override the underlying conduct rules.

Citations and references

Virginia statutes:
- Va. Code Ann. § 24.2-103 (State Board authority)
- Va. Code Ann. § 24.2-604 (polling place conduct; representatives and news media)
- Va. Code Ann. § 24.2-607 (ballot secrecy)
- Va. Code Ann. § 24.2-649 (voter assistance)
- Va. Code Ann. § 24.2-1006 (advising or assisting voters; penalties)
- Va. Code Ann. § 24.2-1011 (removing ballot; voting wrong ballot)
- 1 Va. Admin. Code §§ 20-60-30 through 20-60-50 (State Board polling place regulations)
- Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Virginia Constitution:
- Va. Const. art. II, § 3 (secrecy in voting)

Cases:
- Halifax Corp. v. Wachovia Bank, 268 Va. 641 (2004)
- Jones v. Conwell, 227 Va. 176 (1984)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/16-038_Bell_Lind_issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

September 29, 2016

Mr. William A. Bell, Jr.
Secretary, Isle of Wight County Electoral Board
Post Office Box 77
Isle of Wight, Virginia 23397

Mr. Robin R. Lind
Secretary, Goochland County Electoral Board
Post Office Box 1013
Goochland, Virginia 23063

Dear Mr. Bell and Mr. Lind:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You have presented three questions concerning regulatory amendments adopted by the State Board of Elections (the "Board"). These amendments modify 1 VAC 20-60-30 through 1 VAC 20-60-50, and your questions are limited to consideration of the following language: "Voters are permitted to use cameras or audio or visual recording devices inside the polling place."

Specifically, you have asked the following:

1. Whether the cited regulatory language conflicts with state law;

2. Whether voters shall "'be permitted to use cameras or audio or visual recording devices inside the polling' place which permits them to be in communication with 'an other' outside the polling place without signing a request, and without having 'an other' sign a statement, and have an Officer of Election record the name of the voter and the name and address of the person assisting him" (emphasis in original); and

3. Whether voters shall "be permitted to take photographs or pictures of themselves, or of fellow voters, or make photographic copies of their ballot, within the polling place."

Background

You relate that the Board adopted regulatory amendments to 1 VAC 20-60-30 through 1 VAC 20-60-50 at its June 28, 2016, meeting. These amendments include the language cited above ("Voters are permitted to use cameras or audio or visual recording devices inside the polling place."). You further represent that this language was not previously incorporated in the Virginia Administrative Code.

Applicable Law and Discussion

1. Whether the cited regulatory language conflicts with state law.

The General Assembly has prohibited certain activities within polling places. Sections 24.2-604 and 24.2-607 of the Code of Virginia address this issue. Specifically,

[i]t shall be unlawful for any authorized representative, voter, or any other person in the room to (i) hinder or delay a qualified voter; (ii) give, tender, or exhibit any ballot, ticket, or other campaign material to any person; (iii) solicit or in any manner attempt to influence any person in casting his vote; (iv) hinder or delay any officer of election; (v) be in a position to see the marked ballot of any other voter; or (vi) otherwise impede the orderly conduct of the election[.]

Subsection 24.2-604(E) also authorizes officers of election to "require any person who is found by a majority of the officers present to be in violation of this section to remain outside of the prohibited area" surrounding the entrances to the polling place.

Subsection 24.2-604(C) authorizes the presence of authorized representatives of political parties or candidates within polling places, and these authorized representatives shall be permitted "to use a handheld wireless communications device." However, authorized representatives "shall not be allowed to use such a device to capture a digital image inside the polling place or central absentee voter precinct," and "[t]he officers of election may prohibit the use of cellular telephones or other handheld wireless communications devices if such use will result in a violation of subsection A or D [of § 24.2-604] or § 24.2-607."

Representatives of the news media may also enter polling places on election day, and are permitted "to visit and film or photograph inside the polling place for a reasonable and limited period of time while the polls are open." However, the Code of Virginia specifies that the news media "shall not film or photograph any person who specifically asks the media representative at that time that he not be filmed or photographed"; "shall not film or photograph the voter or the ballot in such a way that it divulges how any individual voter is voting"; and "shall not film or photograph the voter list or any other voter record or material at the precinct in such a way that it divulges the name or other information concerning any individual voter."

As this statutory language demonstrates, the Code of Virginia expressly authorizes the media to film or photograph the ballot, so long as a ballot is not filmed or photographed in a way that divulges a voter's vote. The Code of Virginia also prohibits authorized representatives' use of "handheld wireless communication devices" to capture digital images within a polling place. The Code of Virginia is silent, however, as to the use of such devices by individual voters at polling places. As the General Assembly has prescribed limits for the news media's ability to film or photograph within polling places, and has proscribed authorized representatives' use of handheld wireless devices "to capture a digital image" in polling places, but has not prohibited voters' use of "cameras or audio or visual recording devices" within a polling place, the cited regulatory language does not conflict with state law.

2. Whether voters "shall 'be permitted to use cameras or audio or visual recording devices inside the polling' place which permits them to be in communication with 'an other' outside the polling place without signing a request, and without having 'an other' sign a statement, and have an Officer of Election record the name of the voter and the name and address of the person assisting him."

Article II, § 3 of the Constitution of Virginia provides that "[s]ecrecy in casting votes shall be maintained, except as provision may be made for assistance to handicapped voters, but the ballot box or voting machine shall be kept in public view and shall not be opened, nor the ballots canvassed nor the votes counted, in secret."

Sections 24.2-649 and 24.2-1006 of the Code of Virginia address the manner in which certain voters may receive assistance while voting. As provided by § 24.2-649(B), "[a]ny qualified voter who requires assistance to vote by reason of physical disability or inability to read or write may, if he so requests, be assisted in voting." A voter permitted by law to receive assistance may do so only where (1) the voter signs a written request stating that he requires assistance, and (2) the assisting individual signs a statement. Section 24.2-1006 of the Code of Virginia provides that "[e]xcept as provided by § 24.2-649, no person shall directly or indirectly advise or assist any voter as to how he shall cast his ballot after the voter has entered the prohibited area at the polls," and provides penalties for violations of this section. Accordingly, only the specific methods of voter assistance set out in § 24.2-649 are permitted under Virginia law.

The situation described in your second question, involving the use of a camera or audio or visual recording device to communicate with "an other" outside of the polling place for assistance in voting, is not a method of voter assistance permitted under § 24.2-649. Accordingly, the provision of assistance to a voter by means of communication by a camera or audio or visual recording device would constitute a violation of § 24.2-1006.

3. Whether voters shall "be permitted to take photographs or pictures of themselves, or of fellow voters, or make photographic copies of their ballot, within the polling place."

The Code of Virginia does not prohibit an individual from divulging how he or she is voting. While § 24.2-1011 of the Code of Virginia provides that a voter may not carry a ballot away from a polling place or vote any ballot other than that provided by the officers of election, these prohibitions do not otherwise constitute a prohibition on photography of one's own ballot. Where the media is permitted to photograph voters and ballots in polling places, within certain limits, to conclude that filming and photography are entirely prohibited in polling places would force an incongruous interpretation of the Code of Virginia. However, all relevant statutory and regulatory provisions governing conduct in the polling place remain in effect, and apply to the extent that officers of election conclude an individual's behavior impedes the orderly conduct of the election, as prohibited by § 24.2-604(A) of the Code of Virginia, or impinges upon another voter's constitutional right to a secret ballot in violation of § 24.2-607, the officers of election may take appropriate action pursuant to § 24.2-604(E).

Conclusion

For the reasons set forth above it is my opinion that the regulatory language cited in your request, and included in 1 VAC 20-60-30 through 1 VAC 20-60-50 as amended by the Board on June 28, 2016, does not conflict with state law. It is also my opinion that a voter is not permitted to use cameras or audio or visual recording devices inside the polling place to communicate with individuals outside the polling place in violation of § 24.2-1006 of the Code of Virginia. Additionally, it is my opinion that pursuant to the regulatory amendments adopted by the Board on June 28, 2016, voters shall be permitted to take photographs or pictures within the polling place, where doing so does not constitute a violation of Title 24.2 of the Code of Virginia.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General