North Carolina ballot selfie suit survives dismissal attempt (2025)

Susan Hogarth took a selfie with her filled-out ballot when she voted in primaries last March. State officials mailed her a letter directing her to take it down.

RALEIGH, N.C. (CN) — A North Carolina woman who posted a selfie with her ballot on X — and was ordered to take it down — may continue her lawsuit challenging the state's law against photographing ballots, a federal judge decided Friday.

United States District Judge Louise Flanagan denied motions to dismiss Susan Hogarth’s lawsuit against members of the state board of elections, her local elections board and her local district attorney, finding that she has standing in her First Amendment case.

Attorney Jeff Zeman of the Foundation for Individual Rights and Expression, who represents Hogarth, pointed to Flanagan's rejection of the state's argument that Hogarth wasn't harmed because she could express herself in other ways.

"She doesn't want to just express herself in other ways. Susan will continue to fight until she's free to express her political beliefs in the way she likes best: By taking and sharing ballot selfies," Zeman told Courthouse News.

North Carolina is one of 14 states that bans photographing a “voted official ballot” or voters without the permission of election officials. The restrictions are intended to prevent vote buying, voter intimidation, delays and distractions at polling places and to maintain the privacy of other voters.

Hogarth took a selfie with her filled-out ballot when she voted in primaries last March, which she posted on X, formerly known as Twitter. The state board of elections then mailed her a letter directing her to take the post down and informing her that she had violated state law.

When she returned to the polls in November armed with a court order allowing her to take ballot pictures, she was instructed by polling place staff to stop taking photos and delete them— before staff called the state elections board to confirm that she had an exemption.

“Election officials accosting a voter in a voting booth and instructing them to cease taking and to delete ballot selfies would chill a person of ordinary firmness from engaging in the protected expression of taking and sharing ballot selfies,” Hogarth said in a supplemental complaint.

Hogarth “has shown ‘she has suffered or likely will suffer an injury in fact’” Flanagan said in her order. The judge acknowledged that the state election board is likely to refer Hogarth for prosecution over taking photos of her ballot in the future.

Local election officials are tasked with the responsibility to arrest anybody who violates state election law, Flanagan pointed out, so Hogarth also has standing against the Raleigh elections board, along with its district attorney, who signed an affidavit in September agreeing to not prosecute Hogarth until the constitutionality of the statutes are determined.

“The State Board and Wake County Board repeatedly have exercised the extent of their powers to enforce the statutes, such as by warning voters, including plaintiff, about the statutes, threatening plaintiff with prosecution, and investigating and referring violations to district attorneys,” Flanagan said. “That (District Attorney) Freeman has not enforced these statutes to final conviction against anybody during her term of office does not overcome the presumption of credible prosecution.”

State elections officials argued that Hogarth could express her political beliefs and participation in voting through other outlets, and that her right to free speech isn’t being violated by the restriction on taking photos of a completed ballot.

“Plaintiff remains capable of making the type of speech she wishes to make with or without taking a photograph of her voted ballot,” the board said in support of its motion to dismiss.

Hogarth told Courthouse News in October that she feels the photographed ballot is proof she stands behind politicians she vocally supports.“I’d like people to be able to express themselves in a way they want,” she said.

Flanagan granted the removal of Attorney General Jeff Jackson as a defendant, agreeing that the 11th Amendment grants him, as a state official, immunity from being challenged in federal court.

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