Bice: Judge throws out felony charge for Mequon official who posted ballot selfie on Facebook
So maybe you can post a selfie of your ballot on social media without fearing you'll do time in the clink.
Just maybe.
On Monday, Ozaukee County Judge Paul Malloy threw out a felony charge of voter fraud against Paul Buzzell, a Mequon-Thiensville School Board member, for posting a photo of his completed April 2022 ballot on his Facebook page.
Buzzell had faced up to 3½ years behind bars and up to $10,000 in fines on the Class I felony for taking the so-called "ballot selfie." He would also have been barred from holding any elective office.
But Malloy dismissed the case in a hearing on Monday morning, saying the state law was overly broad and in violation of the constitutional guarantee of free speech.
"This case was about more than just a Facebook post; it was about protecting the fundamental right to freedom of expression," Michael Chernin, attorney for Buzzell, said in a statement. "We are pleased with the court's decision to uphold these essential liberties."
But Ozaukee County District Attorney Adam Gerol, who brought the case, said Malloy's decision doesn't set a precedent in Wisconsin because it is just a circuit court ruling.
Gerol said he would be asking Attorney General Josh Kaul's office to review the decision and decide whether to file an appeal. If not, Gerol said he is asking that the second-term Democratic attorney general will issue an official opinion on the law.
"It's in the AG's hands," said Gerol, a Republican.
A Kaul spokeswoman did not have an immediate response.
When he brought the charge last year, Gerol said he saw it as a "test case."
State voter fraud laws say it is illegal for anyone to show a marked ballot to anyone else or to place a mark on a ballot that identifies it as that person's ballot.
But some courts, including a federal judge in New Hampshire, have held that statutes barring an individual’s right to publish their ballot would be a violation of the First Amendment. The U.S. Supreme Court refused to hear an appeal of the New Hampshire ruling.
As it turned out, Buzzell wasn't just any voter. He opposed the heated 2021 recall election in the Mequon-Thiensville School District over such hot-button conservative issues as the teaching of race in schools and the handling of the coronavirus pandemic. All four incumbent school board members ended up retaining their seats.
Buzzell, a former school board member and a Republican, then ran for the office again in April 2022 and finished on top, winning a three-year term. He is currently the treasurer of the school board.
According to the complaint, a Thiensville resident alerted the Mequon Police Department of Buzzell's Facebook post with a photo of his ballot. Later that day, another stickler showed up at the police department with the same tip, the complaint says.
Buzzell's social media post shows that he voted for himself and another candidate.
"Officer Van Laanen told Buzzell the nature of the complaint and that posting the photo of the ballot was illegal," the two-page complaint says. "Buzzell stated that his understanding was that it was not illegal to post a photo of a ballot with his name on it."
Michael Maistelman, another attorney for Buzzell, said the case highlights the tension between election laws and constitutional rights in the digital age. Unlike in a civil case, Buzzell can't ask the state to pick up his legal fees if he wins.
Said Maistelman, a Democrat: "The dismissal of this case is a reminder that the laws need to evolve with the changing ways in which we communicate and participate in our democracy."
Contact Daniel Bice at (414) 313-6684 or dbice@jrn.com. Follow him on X at @DanielBice or on Facebook at fb.me/daniel.bice.
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This article originally appeared on Milwaukee Journal Sentinel: Judge throws out felony charge over ballot selfie on Facebook
