Expat blog: from selfie to votie?

Selfies. Some people claim they’re everything that’s wrong with our contemporary society. These self-shots, of people who apparently don’t have friends to take pictures of them, are claimed to turn teenagers into self(ie)-obsessed narcissists, ruining their personalities, if not causing global warming, nuclear proliferation and untied shoelaces.

Now, while I’m not personally inclined to take selfies (for aesthetic reasons I prefer someone-elsies), I have heard it rumoured that there was at least some narcissism out there prior to the invention of the iPhone. And from a safety standpoint gazing at selfies seems preferable to, literally, soaking up your reflection in forest ponds…

In Belgium, the Netherlands and elsewhere a specific type of selfie has been giving rise to debate: the 'votie' (or stemfie(1), as it has become known in Dutch). It basically entails taking a selfie in the voting booth, after having selected (and indicated) your preferred candidate(s), and – usually – to post it on Twitter, Instagram or Facebook afterwards.

Voties were all the rage in the Netherlands during the recent municipal elections of March 19th. Citizens and politicians united in posting voties all over the social media.

In the run-up to the elections, the Dutch minister of the interior had issued instructions to inform municipalities that voties were, in principle, authorized(2). The minister emphasised that he wasn’t calling on people to take voties, but that it was formally allowed to do so since there was nothing in the Dutch electoral law that forbids it.

Indeed, the minister thought it could even be a good way of getting people to go out and vote, since voter turnout for municipal elections in the Netherlands dwindles faster than the average smartphone battery.

Lawfie

Not everyone in the Netherlands loved this idea though. A civil rights organisation brought summary proceedings against the minister, demanding that he rectify his statements on the admissibility of the votie.

The organisation’s main argument was that voties allow for undue influence on voting behaviour, and that they therefore violate the secrecy of the ballot guaranteed in the Dutch Constitution. If, for instance, an authoritarian husband demands that his wife votes in a certain way, allowing voties could offer him the means to verify whether his demands were heeded.

A court in The Hague rejected the organisation’s claims. The judge did acknowledge that "the disadvantages [of the votie] outweigh the advantages", pointing inter alia to pressure that voters may experience from third parties. However, this did not lead to the conclusion that voties are presently prohibited.

The court pointed out that the secrecy of the ballot could not, in itself, serve this purpose, since "everybody is free before or after voting to announce his vote": "Seen this way, the secret ballot is not an obligation but a right". In the absence of an actual, explicit prohibition, there was no legal basis for considering voties unlawful.

Especially since the court pointed out that voters have means to circumvent the potential problems attached to voties: they can ask for a new ballot after making their votie, or they can undo and change their vote after taking the picture.

Belfie: 3000 Euro fine?

Interestingly, in Belgium – where federal, regional and European elections will take place on the 25th of May – the authorities have claimed that voties are strictly prohibited.

A spokesperson of the ministry of the interior stated that the Constitution requires that the secrecy of the ballot must be maintained at all times, in order to avoid undue pressure and influence. He announced that any behaviour violating the secrecy, including voties, would be sanctionable with fines of up to 3000 Euro.

However, while it is correct that the Belgian Constitution(3) states that the vote is secret, this doesn’t preclude voters from announcing voluntarily for whom they voted, on the internet or elsewhere(4). The Constitution grants voters the right to keep their vote secret, if they wish, but they are not obligated to do so. In this regard, the situation is no different from the Netherlands.

Besides, the ministry seemed to contradict its own argument when it pointed out that voties prove nothing in the way of someone’s actual vote: "Indeed, [a votie] is absolutely no evidence that you have actually voted for a specific politician, since you can still change your vote afterwards".

But the Belgian authorities go further still: even voties that do not reveal for whom someone voted (taken, for instance, before casting one’s vote), will be considered unlawful. More specifically, the ministry’s spokesperson indicated that practical requirements, contained in the electoral law, stipulate that "voters may not remain in the voting area any longer than is necessary to fill out their ballot", in order to avoid delay and long queues.

While the electoral law indeed contains a general requirement of this kind(5), the question is, firstly, whether it is sufficiently clear to amount to a legal basis for banning voties: the electoral laws of virtually all countries that allow voties contain similar provisions. Moreover, a wide interpretation of this provision, like the one proposed by the ministry, would mean that anyone found scratching himself or blowing his nose could be fined as well: neither action is strictly necessary for voting and both 'delay' the voting process.

Secondly, and relatedly, it is difficult to see how a seven second selfie would delay the voting process in any significant, let alone unlawful, sense. And last but not least, one may wonder how the authorities would go about enforcing this (debatable) ban: in Belgium voting takes place behind a drawn curtain(6), so unless someone takes an inordinate amount of time, 'transgressions' will go unnoticed. In fact, and ironically, any meaningful enforcement would require authorities to violate… the secrecy of the ballot.

Of course, if people subsequently publish their voties on the social media, it will be possible to identify them. However, the article in the Electoral Law that the authorities invoke, relates only to measures aimed at maintaining the order in and around the polling station itself, at the time of voting.

What’s not forbidden is allowed?

The votie issue is by no means limited to the Netherlands and Belgium. Other countries have been confronted with it as well, forcing them to take a position. Some countries opted for prohibitions, while others have decided to allow self-snapping in the voting booth.

What most countries and regions that ban it have in common though, is – well – a ban. That is: an explicit, unequivocal prohibition. A majority of States in the US, for instance, have laws that prohibit the disclosure of marked ballots, including your own, in any way(7). In other countries, like South Africa and the Philippines, it is a specific offence to take or publish photographs which reveal a person’s vote on a ballot paper.

No such prohibitions are in place in Belgium. Though it would be wise for the authorities to appeal to voters to refrain from taking voties, both for practical and principled reasons, the legal basis for their threats with actual sanctions seems insufficient: what is not forbidden is, in principle, permitted.

ps. This blog does not constitute, nor should it be taken as, legal advice.

(1) A contraction of ‘selfie’ and ‘stemmen’ (voting).

(2) As long as voters taking pictures of themselves did not hinder the voting process unduly. The instructions also pointed out that it was prohibited to photograph other voters in the polling stations without their permission.

(3) Art. 62 § 3 Belgian Constitution. See also art. 114 General Electoral Law (Algemeen Kieswetboek).

(4) Provided they don’t say or shout it while in the polling station, that is. See art. 111 General Electoral Law.

(5) Art. 109 § 4 General Electoral Law.

(6) Interestingly (though I may be using that word rather loosely here), some countries consider it an absolute requirement for voting to take place behind a curtain (e.g. Belgium), whereas other countries take the exact opposite stance (e.g. the Netherlands).

(7) In a few States in the US (including Florida, Georgia, Kentucky, Michigan, Nevada, North Carolina, and Texas) polling booth selfies are (also) prohibited on account of photography in general being expressly prohibited in the polling station.

In the UK, section 66 of the Representation of the People Act 1983 even prohibits the publishing, before the poll is closed, of any statements relating to the way in which voters have voted, at least where such statements are “based on information given by voters after they have voted”. The Electoral Commission takes this to include most (though not all) votes.

Jogchum Vrielink's blog first appeared on the VRT expat website Fans of Flanders.