If you don't Instagram it, did it really happen? By that logic, if you don't snap a photo of your ballot and post it on social media, does your vote even count?

Yes, of course it does, and maybe cool it with the constant photos. Still, the drive to document and share your civic engagement is real, and cool, and according to free speech advocates, a right protected by the First Amendment.

That thinking, however, is at odds with California law, which currently bans taking photos of marked ballots. Such is also the case in 18 states according to the Associated Press, and six others ban photography in polling places but allow photos of mail-in ballots.

While acknowledging that California doesn't actively enforce the ban — you've probably seen a lot of early voters violate it already with a Facebook post this election season — the ACLU filed a lawsuit against the state of California this week in federal court in San Francisco seeking an injunction to legally block the state from enforcing it. And yes, the litigation includes the colloquialism “ballot selfies.”

“People increasingly use photographs of their marked ballot as a way to express their support for candidates and issues,” senior staff attorney for the ACLU of Northern California Michael Risher said in a statement. “This is core political speech at the heart of the First Amendment.”

The suit names California Secretary of State Alex Padilla, who has issued a statement on the matter. As he points out, a law allowing for ballot photography has already been passed by state legislature and signed into law, but it doesn't go into effect in time for this election. "I agree that this outdated law needs reform," he writes. "That’s why I supported AB 1494 — passed this year by the legislature and signed into law by the governor — allowing voters to take ballot selfies starting January 1, 2017.”

According to the AP, Padilla's office believes a late change would potentially result in "voter and poll worker confusion, delays at the polls, and inconsistent interpretation of the law at the thousands of polling locations across the state.” A judge will hear arguments in the case today, and Padilla says he's ready to stand behind whatever outcome. “My office stands ready to comply with any decision handed down by the court on this matter," he writes. "In the meantime, voters can still take a selfie of their ‘I Voted’ sticker.” Hey, that doesn't count!

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