Amy from Salem asks:
Last election I posted a picture of my ballot on Facebook and my friend told me that was illegal. But I've seen lots of people and even politicians posting photos of their ballot. Is it illegal?
Amy:
The long story short is that it used to be illegal, but isn't anymore.
Oregon used to ban showing someone your filled-out ballot to see how you voted. This included posting a picture of your filled-out ballot on Facebook. Oregon changed the law but it's still illegal in 16 states to post a pic of your ballot on Facebook and legally squishy in 12 more (depending on how you count).
But why is that even a thing?
The ban used to be in ORS 260.695(7) (Here's a link to the archived version of ORS). It read:
"(7) A person may not show the person’s own marked ballot to another person to reveal how it was marked."
A few sessions ago, the Legislature In Its Wisdom eliminated the provision, because no one really understood why it was there and a bunch of people wanted to show each other how they voted and share their ballot pics on Facebook and all that.
But that provision was actually serving a purpose: preventing the commoditization of votes. When people aren't allowed to see each other's ballots, it's difficult to "sell" a vote (whether through implication or anticipated benefit) because there would be no legal way to actually verify the transaction.
But it's the 21st century, and people have got to post stuff on Facebook. So the Legislature gave in and allowed it.
But here's what the Legislature should have done. Instead of simply eliminating the provision, they should have moved it to ORS 260.665, which lists things that a person cannot exert undue influence upon another person to get that other person to do.
"As used in this section, “undue influence” means force, violence, restraint or the threat of it, inflicting injury, damage, harm, loss of employment or other loss or the threat of it, or giving or promising to give money, employment or other thing of value." (ORS 260.665)
It ought to be illegal to exert "undue influence" to get someone to show you their ballot.
Consider this example:
Let's say a local partisan organization sets up a lavish election-season party (after ballots are mailed). They advertise free drinks, free food, free everything. All you have to do is show them your ballot to prove you voted. They say it doesn't matter how you voted, just as long as you did vote. As long as they legitimately didn't turn anyone away based on how that person voted, it would be legal. But if everyone knows which political party is throwing that party, and they know which candidates the organizers and most of the attendees are going to want to see marked. And if they don't want to be pariahs, they might vote a certain way just because they also know that the organizers and going to look at their marked ballot and at that point be free to communicate the nature of that ballot to whomever they see fit.
However, if the former 260.695(7) became a provision of 260.665, then showing someone your marked ballot is still acceptable... but exerting "undue influence" (say, offering something of value or making a threat) to get someone to show their ballot becomes prohibited. In the current ORS 260.665(2)(a)-(i), there is a list of actions that, on their own, are perfectly fine for people to choose to do on their own: withdraw from a race, vote, contribute to a campaign, etc. But it is illegal to exert influence on a person to make them do these things.
So in the previous example, it would then be illegal for the party organizers to offer things of value to people in order to entice them to show their marked ballot. They could still, for example, set up an unofficial dropbox. People could still show their ballots if they wanted to. But they couldn't be forced or coerced or bribed into doing so.
The example above is not likely to happen, but one could envision micro-coercions happening on an individual level: for example, a place of employment promoting voter participation by offering some benefit for displaying a marked ballot.
Whatever policy in place, there will always be a background level of peer pressure that is difficult to legislate against... but it ought to be against the law to coerce someone into showing their marked ballot.
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