Fourth Circuit Hears Arguments Over North Carolina's Ballot-Selfie Ban
A three-judge federal appeals panel heard argument Sept. 15 in Libertarian voter Susan Hogarth's First Amendment challenge to five North Carolina laws barring photos of marked ballots.
Two Judges, One Photo, Zero Evidence
A federal appeals panel in Richmond spent Sept. 15 arguing over a picture that, by the state's own account, has never caused any of the harm it's supposed to prevent. Susan Hogarth, a Libertarian and former North Carolina state Senate candidate, posted a photo of her own filled-in primary ballot to social media in March 2024[2][7]. The State Board of Elections told her to take it down, saying the post broke the law. She sued instead[2][7].
That single photo is now the center of a case that could reshape ballot rules in five states. The Fourth Circuit panel, hearing Hogarth v. Bell (also filed as Hogarth v. Hayes, No. 26-1328), is reviewing a March 9, 2026 ruling that upheld North Carolina's ban on photographing a marked ballot[1][3][7]. No decision had come down as of Sept. 16.
Here's the twist buried in the record: North Carolina admits it can't point to a single case of the crime it says this law prevents.
A Law With No Body Count
North Carolina makes it a Class I misdemeanor to photograph or share a picture of your own marked ballot inside a polling place[7]. The stated reason is vote buying. If someone pays you to vote a certain way, they need proof you actually did it — and a ballot selfie is that proof[5][6].
At argument, Judge DeAndrea Gist Benjamin, a Biden appointee, asked the state's lawyers a direct question: what examples do you have of ballot selfies actually being used to buy votes or commit other crimes? The state offered none[6]. Its lawyers argued the law doesn't need that kind of evidence to hold up in court[6].
That gap is the whole case. Hogarth's lawyers, from the Foundation for Individual Rights and Expression, call it fatal — a state can't criminalize speech on a hunch[4]. The state calls it beside the point, and the reason why gets at a legal idea worth unpacking: the "nonpublic forum."
A polling place, under this doctrine, is government property set up to do one specific job — casting a vote — not a place where the public gathers to speak freely, like a sidewalk or a park. Courts let the government set reasonable, evenhanded rules in a nonpublic forum without demanding much proof that each rule works. U.S. District Judge Louise Flanagan, a George W. Bush appointee, ruled in March 2026 that the polling place fits that category, and that North Carolina's ban treats every voter the same regardless of who they're voting for[7]. If the appeals panel agrees, the state doesn't have to prove the law stopped real vote buying. If it disagrees and treats a ballot photo as core political speech, the state needs real evidence of harm — and right now it doesn't have any[6][12][13].
The Receipt Problem
Strip away the legal jargon and the state's argument is simple: a secret ballot only works if it stays secret. Here's the mechanism. Someone can offer you money or pressure you to vote a certain way all they want — but if there's no way to prove which way you actually voted, they can't enforce the deal[6]. You can promise anything at the door and vote your conscience in the booth.
A photo of a marked ballot breaks that shield. It's a receipt. The state's brief puts it bluntly: "A ballot is not secret if it is shared"[5][6]. Voters can say however they voted, out loud, to anyone — they just can't manufacture proof[6]. That distinction, the state argues, is why the ban isn't really about silencing opinions; it's about denying the specific evidence a buyer or a coercive spouse would need[6].
FIRE's answer has real force too. Vote buying is already its own separate crime, they argue — so the photo ban just stacks a second, speech-based offense on conduct that's illegal anyway[4]. Their strongest precedent is the First Circuit's 2016 Rideout v. Gardner decision, which struck down an identical New Hampshire ban partly because the state there also couldn't produce a single modern vote-buying case[12]. FIRE's attorney Jeff Zeman argued at the hearing that "the only thing North Carolina's ballot selfie ban does is criminalize otherwise lawful speech"[3].
Six Weeks Before the Vote
Underneath the legal theories sits a plainer pressure: timing. Absentee ballots for the Nov. 3 general election started going out Sept. 4. In-person early voting opens Oct. 15[9][10]. That means the Fourth Circuit heard this case after voting had already begun.
Election administrators don't just want to win a First Amendment argument — they want to avoid retraining 100 county boards on what's legal inside a voting booth while ballots are already being cast[6][9]. That's a real institutional interest, separate from whether the underlying law is good policy. Courts, too, tend to be wary of changing election rules close to Election Day, a caution sometimes called the Purcell principle. That instinct could work against a fast ruling for Hogarth even among judges sympathetic to her free-speech claim.
On the other side, FIRE picked this case carefully. Hogarth is a low-stakes, sympathetic plaintiff — nobody was harmed, no election outcome was affected, and she isn't a major-party figure who'd turn the case into a partisan flashpoint[4]. That makes the state's lack of evidence the whole story, which is exactly the ground FIRE wants to fight on. Hogarth herself faces no legal risk right now regardless of the outcome; a separate court order already bars her prosecution while the case proceeds, even though the ban still applies to every other North Carolina voter[7][8].
A Rule Older Than the Camera Phone
The secret ballot isn't a modern privacy feature. The U.S. adopted it in the late 1800s specifically to break the practice of vote buying, and 44 state constitutions still guarantee ballot secrecy in some form[14]. States defending bans like North Carolina's are protecting a structural, decades-old rule — which is also part of why they can't point to a recent scandal as proof it's needed. If the rule is working, there's nothing to show.
But mail voting complicates that logic for both sides. Most states don't police photography at a voter's own kitchen table, so a vote buyer in much of the country can already get a ballot photo through the mail[14][15]. That undercuts the state's claim that the in-person booth ban closes some critical loophole. It also undercuts the argument that the ban is the thing chilling political speech, since the same act is often perfectly legal by mail.
Nationally, the law is a genuine patchwork. Roughly 15 states ban ballot selfies outright, three more had bans that courts struck down or blocked, four states allow the practice only for mail ballots, and nine have rules too unclear to classify, according to a count by the progressive legal nonprofit Lawyers for Good Government[14]. Federal appeals courts have split: the First Circuit struck down New Hampshire's ban in Rideout, while the Sixth Circuit's Crookston v. Johnson leaned more sympathetic to a state defending its ban, partly because that case arrived on an emergency basis close to an election[12][13]. The Supreme Court hasn't stepped in to settle the split. A published Fourth Circuit ruling would bind not just North Carolina but South Carolina, Virginia, West Virginia and Maryland[12].
Who's Been Watching
Coverage of this case has run almost entirely through North Carolina outlets and legal trade press — no national wire service and no foreign outlet has covered it[1][15]. Carolina Journal, published by the conservative John Locke Foundation, has filed at least seven separate stories tracking every docket step, consistently centering FIRE's framing of a citizen against state bureaucracy[3][4][5]. WRAL, the Raleigh station owned by the center-left-leaning Capitol Broadcasting, framed its headline as a question and put the state in the position of defender — "State officials defend the rule in court" — while still surfacing the damaging fact that the state offered no vote-buying examples[6]. Courthouse News and Law360, both legal trade outlets, stuck close to straight docket reporting[7][16].
That lopsided sourcing doesn't mean the dispute itself is small. The constitutional question is live in five states and unresolved by the Supreme Court. It means one side of the press has simply treated it as a story worth following week to week, and the other largely hasn't shown up at all.
Summary
A federal appeals court in Richmond heard arguments Sept. 15 over whether North Carolina can make it a crime to photograph your own marked ballot. The voter who brought the case is Susan Hogarth, a Libertarian and former state Senate candidate. In March 2024 she posted a photo of her completed primary ballot on social media. The State Board of Elections told her the post was illegal and asked her to take it down. She sued instead[2][7].
Hogarth is represented by the Foundation for Individual Rights and Expression, or FIRE, a free-speech legal group that takes cases across the political spectrum. FIRE argues a ballot selfie is core political speech — the most protected kind under the First Amendment — and that the state has offered no evidence the ban prevents any real harm[4]. Lawyers for the state and Wake County counter that a secret ballot stops working once a voter can prove how she voted. In their brief they wrote: "A ballot is not secret if it is shared"[5][6].
U.S. District Judge Louise Flanagan, a George W. Bush appointee, ruled for the state on March 9, 2026. Her 15-page order said a polling place is a "nonpublic forum" — a government space set aside for one job, where speech rules face an easier legal test than they would on a public sidewalk[7]. Hogarth appealed on March 20[2].
The sharpest exchange at argument came from Judge DeAndrea Gist Benjamin, a Biden appointee. She asked the state's lawyers what examples they had of ballot selfies being used for vote buying or other criminal purposes. The state's lawyer provided none, arguing court precedent does not require that kind of evidence for the law to stand[6]. That is the crux — not whether vote buying is bad, but how much proof a state must show before it can criminalize speech to prevent it. Voting in the November election has already started: absentee ballots began going out Sept. 4, and in-person early voting opens Oct. 15[9][10].
The Event
On Tuesday, Sept. 15, 2026, a panel of the U.S. Court of Appeals for the Fourth Circuit heard oral argument in Susan Hogarth's challenge to five North Carolina laws that bar photographing and sharing a marked ballot[1][3]. The case is docketed as No. 26-1328 and appears in court records under both Hogarth v. Bell and Hogarth v. Hayes, reflecting a change in the named state elections official[1][3]. Hogarth, a Libertarian and former state Senate candidate, is represented by the Foundation for Individual Rights and Expression; the state and Wake County boards of elections and Wake District Attorney Lorrin Freeman are defending the laws[3][5]. The panel is reviewing U.S. District Judge Louise Flanagan's March 9, 2026 order granting summary judgment to the defendants[7]. No ruling had issued as of Sept. 16.
Undisputed Facts
- Susan Hogarth posted a photo of her completed March 2024 primary ballot on social media, and the State Board of Elections notified her the post appeared to violate state law and asked her to remove it[2][7].
- Taking or sharing a photo of a marked official ballot inside a voting place is a Class I misdemeanor under North Carolina law[7].
- Hogarth sued in August 2024, challenging five state statutes, with the Foundation for Individual Rights and Expression as her counsel[7].
- A federal court ordered that Hogarth herself not be prosecuted while the case is pending, so the ban is currently unenforced against her but in force against everyone else[8].
- U.S. District Judge Louise Flanagan, a George W. Bush appointee, upheld all five laws in a 15-page summary-judgment order on March 9, 2026, finding polling places are a nonpublic forum and the statutes viewpoint-neutral[7][16].
- Hogarth filed a notice of appeal on March 20, 2026, and the Fourth Circuit granted an expedited schedule, hearing argument Sept. 15, 2026[1][2].
- At argument, Judge DeAndrea Gist Benjamin asked the state what examples it had of ballot selfies being used for vote buying or other criminal purposes; the state's lawyer provided none[6].
- North Carolina began mailing absentee ballots for the Nov. 3, 2026 general election on Sept. 4, and in-person early voting runs Oct. 15 through 3 p.m. Oct. 31[9][10].
The Pressure
Strip away the moralizing and blame. What structural realities persist regardless of which narrative wins?
- Administrators fear mid-election chaos
- Absentee ballots went out Sept. 4 and early voting starts Oct. 15[9][10]. Election officials' core interest is not winning a speech argument — it is not having to retrain 100 county boards on what is legal inside a voting booth while ballots are being cast. That timing pressure explains the state's defense as much as the legal theory does.
- Litigation groups need vehicles, not victims
- FIRE picked a clean, sympathetic, low-stakes fact pattern: no one was harmed, no election was affected, and the plaintiff is a minor-party activist rather than a partisan flashpoint. That makes the evidentiary weakness of the state's case the whole story, which is exactly the terrain FIRE wants[4].
- The secrecy rule is older than the technology
- The secret ballot was adopted in the U.S. in the late 1800s precisely to break open vote buying, and 44 state constitutions still encode it[14]. States defending these bans are protecting a structural rule, not reacting to a recent scandal — which is also why they cannot produce recent scandals as evidence.
- Mail voting already undercuts both sides
- Most states do not police photography at a voter's kitchen table, so the proof a buyer would need is already obtainable through mail ballots in much of the country[14][15]. That weakens the state's claim the booth ban closes the loophole — and weakens the challengers' claim that the ban is the thing chilling speech.
Material realityFive North Carolina statutes making ballot photography a Class I misdemeanor are on the books and enforceable against everyone except Susan Hogarth, who holds a court order barring her prosecution[7][8]. A district judge upheld them in 15 pages on March 9, 2026, on nonpublic-forum grounds[7][16]. A Fourth Circuit panel heard argument Sept. 15 and had not ruled as of Sept. 16. Voting in the Nov. 3 general election has already begun by mail[10]. Nationally the law is a patchwork: roughly 15 states ban the practice, courts have blocked bans in New Hampshire, Indiana and Georgia, four states allow it only for mail ballots, and nine have unclear rules[14]. The First Circuit and the Sixth Circuit have pointed in different directions and the Supreme Court has declined to settle it[12][13]. None of that changes whichever way this panel rules; it only determines which of five states joins which side.
Narrative as a weaponTwo organized actors are shaping how this reads. FIRE wants you to see a state punishing a woman for a photograph and failing, on the record, to name one harm it prevented — and the admission that zero vote-buying schemes were stopped is genuinely its strongest card[6]. North Carolina's lawyers want you to see past the selfie to the receipt: they are arguing the picture is what makes coercion enforceable, and that the absence of vote buying may be evidence the rule is working, not evidence it is useless. That is an unfalsifiable argument, and courts have split on whether to accept it[12][13]. A third framing comes from the coverage pattern itself. This story has been carried almost entirely by one conservative think-tank outlet, one regional station, and legal trade press, with no national wire and no foreign coverage found. Readers should not mistake that thin, ideologically lopsided sourcing for a thin dispute — the constitutional question is live in five states, but only one side of the U.S. press has treated it as a story worth following week to week.
How Each Side Sees It
Each major actor’s view — how it frames things, its underlying incentive, and how it’s materially affected. Tap a side to read it.
Frames it asTheir case is not really about selfies. It is about who carries the burden of proof when a state criminalizes speech. A photo of your own filled-in ballot is political speech at its core — you telling the world what you believe, with proof. Under the First Amendment, the government cannot ban that on a hunch. FIRE argues North Carolina offered "only conjecture rather than the evidence the Constitution requires"[4]. Their strongest analogy is the First Circuit's 2016 Rideout v. Gardner ruling, which struck down New Hampshire's identical ban partly because the state could not point to a single modern vote-buying case there[12]. FIRE also argues the ban is a poor fit for its stated purpose: buying votes is already a separate crime, so the photo ban only adds a speech offense on top of conduct that is illegal anyway. As Zeman put it at argument, "The only thing North Carolina's ballot selfie ban does is criminalize otherwise lawful speech"[3].
WhyFIRE is a nonpartisan-by-design free-speech litigation group founded out of campus-speech work; it funds itself through donations and builds precedent case by case. A circuit-level win would extend the Rideout rule into the Fourth Circuit and strengthen the argument that speech restrictions need real-world evidence, not theory[4][12]. Hogarth, a third-party activist, also gains visibility for Libertarian ballot-access causes.
Impact on themHogarth personally faces no prosecution risk right now because of a court order protecting her alone[8]. A loss would leave every other North Carolina voter exposed to a Class I misdemeanor for the same act she has been cleared to do — an outcome FIRE points to as evidence of how odd the ban's enforcement has become[7][8].
Frames it asThe state says the secret ballot is not a privacy perk — it is the machine that makes vote buying and coercion impossible to enforce. Here is the mechanism, and it is the whole case. A buyer or an abusive spouse can pay or pressure you all they like, but if you cannot prove which way you actually voted, the deal cannot be policed. The secrecy is what protects you: you can promise anything and still vote your conscience. A photo of the marked ballot is the missing receipt. That is why state lawyers argue the concern is the "probative effect" of the picture — the proof value, not the sentiment[6]. Voters remain completely free to say who they voted for; they just cannot manufacture evidence[6]. Their brief puts it plainly: "A ballot is not secret if it is shared"[5]. The state also argues a polling place is a nonpublic forum — government property set up to do one job — where reasonable, viewpoint-neutral rules apply, exactly as Judge Flanagan held[7]. On evidence, they lean on the Sixth Circuit's Crookston v. Johnson, which credited a state's interest in heading off vote buying before it takes root rather than waiting for it to appear[13].
WhyElection administrators are judged by whether an election is both clean and seen as clean. They want to defend a long-standing rule six weeks before ballots are counted, and they do not want a mid-election change in what is legal inside a voting booth[6][9].
Impact on themA loss would void five statutes and force new guidance to 100 county boards while voting is already underway[9][10]. A win preserves the status quo but leaves the state defending a law that, by its own lawyers' admission at argument, has stopped zero vote-buying schemes[6].
Frames it asThe judges are not choosing between free speech and clean elections in the abstract. They are picking a legal test. If a polling place is a nonpublic forum, the state wins with a reasonable, viewpoint-neutral rule — a low bar. If ballot photos are core political speech in a general sense, the state faces a much harder test and must show real evidence of harm. The First Circuit chose the harder test in Rideout and struck New Hampshire's ban[12]. The Sixth Circuit in Crookston was more sympathetic to the state, in part because that case came up on an emergency posture close to an election[13]. Federal courts have also blocked bans in Indiana and Georgia[14].
WhyCourts are wary of changing election rules close to an election — a caution rooted in the Purcell principle, the idea that late judicial changes confuse voters and administrators. That instinct cuts against a fast ruling for Hogarth, even from judges sympathetic to her speech claim[13].
Impact on themA published Fourth Circuit opinion would bind North Carolina, South Carolina, Virginia, West Virginia and Maryland, and would sharpen a national divide that the U.S. Supreme Court has so far declined to resolve[12].
Frames it asGroups that study ballot-selfie laws stress the split is real and messy. A 2024 count by Lawyers for Good Government — a progressive legal-advocacy nonprofit — found 15 states banned ballot selfies outright, three more had bans that courts struck down or blocked, four allowed them only for mail ballots, and nine had rules too unclear to call[14]. The same report notes 44 state constitutions guarantee ballot secrecy in some form[14]. Voting-rights advocates who back the bans argue the people most exposed to coerced voting — nursing-home residents, workers, people in controlling households — are exactly the ones least able to sue when the receipt becomes possible. Advocates on the other side argue that treating a proud voter as a criminal chills participation and that the mail ballot, filled out at a kitchen table with no ban on photography in most states, already blew a hole in the theory.
WhyBoth camps want a clear national rule; the current patchwork means the same act is a crime in one state and a civic ritual in the next[14][15].
Impact on themWhatever the Fourth Circuit does, most American voters' rights will still depend on which state they live in[15].
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The Bias Ledger average rating 2.5
The same story, as framed by outlets across the spectrum, ordered least to most biased. The bias score (1 = straight, 10 = heavily spun) is an AI assessment of that framing — click an outlet to see its track record. The tell is the word choice or omission that reveals the angle.
| Outlet | Vantage | Bias | How they frame it | The tell |
|---|---|---|---|---|
| Courthouse News Service | U.S. center; legal trade press, subscription and ad funded | 2 | "Federal judge backs North Carolina ban on ballot selfies" | Close to straight docket reporting. It identifies Flanagan as a George W. Bush nominee and explains the nonpublic-forum holding rather than just naming it — the kind of mechanism detail most coverage skipped. |
| Ballot Access News | U.S. third-party/minor-party advocacy (edited by longtime ballot-access activist Richard Winger) | 2 | "Fourth Circuit Will Hear 'Ballot Selfie' Case on September 15" | Dry and accurate on docket facts — it is the only source carrying the case number, 26-1328. But it exists to advance minor-party ballot access, and its interest in Hogarth is partly that she is a Libertarian. Reader should note the orientation even though the text carries almost no adjectives. |
| Law360 | U.S. center; paywalled legal trade press owned by LexisNexis | 2 | "Ballot Selfie Ban Doesn't Flout Free Speech, NC Judge Rules" | States the holding in the court's voice with no editorializing, but the paywall means the underlying reasoning is not checkable by general readers. |
| Cox Media Group | U.S. center; syndicated service journalism running on dozens of Cox radio and TV sites | 2 | "Is your ballot selfie legal? States differ on rules for sharing voting photos." | Reframes a constitutional fight as a consumer how-to. Useful, but by treating the patchwork as neutral background it never asks whether the bans work — the exact question the Fourth Circuit is weighing. |
| WRAL | U.S. center-left (Capitol Broadcasting, Raleigh) | 3 | "Is NC's ban on ballot selfies unconstitutional? State officials defend the rule in court" | The headline asks the question and then makes the state the actor defending. That ordering puts the ban in the position of the thing under attack. Offsetting this, WRAL surfaced one of the most damaging facts for the state — Judge Benjamin's question asking for examples of ballot selfies used in vote-buying schemes, to which the state's lawyer provided none. |
| Carolina Journal | U.S. right (published by the John Locke Foundation, a conservative North Carolina think tank) | 4 | "4th Circuit hears Libertarian's challenge to NC 'ballot selfie' ban" — one of at least seven pieces tracking every docket step. | Sustained volume is itself the frame: no other outlet has covered each filing. The challenger is the subject of the headline verb and FIRE's quotes lead. To its credit, it also ran a standalone piece on the state's brief, so the state's argument is not omitted — but the running story is citizen versus state. |
References
- Fourth Circuit Will Hear "Ballot Selfie" Case on September 15 — Ballot Access News · U.S. minor-party/ballot-access advocacy; edited by activist Richard Winger
- North Carolina "Ballot Selfie" Decision will be Appealed — Ballot Access News · U.S. minor-party/ballot-access advocacy
- 4th Circuit hears Libertarian's challenge to NC 'ballot selfie' ban — Carolina Journal · U.S. right; published by the John Locke Foundation, a conservative NC think tank
- 'Ballot selfie' backer makes case at 4th Circuit against NC ban — Carolina Journal · U.S. right; John Locke Foundation
- State lawyers defend NC 'ballot selfie' ban at federal Appeals Court — Carolina Journal · U.S. right; John Locke Foundation
- Is NC's ban on ballot selfies unconstitutional? State officials defend the rule in court — WRAL · U.S. center-left; Capitol Broadcasting Company, Raleigh
- Federal judge backs North Carolina ban on ballot selfies — Courthouse News Service · U.S. center; independent legal trade press
- Judge orders no prosecution of Libertarian challenging NC ballot selfie ban — Carolina Journal · U.S. right; John Locke Foundation
- In-Person Early Voting Period | November 2026 General Election — North Carolina State Board of Elections · U.S. state government agency; a party to this case
- Voting in the 2026 General Election Begins This Week in NC — North Carolina State Board of Elections · U.S. state government agency; a party to this case
- Can you take a selfie with your ballot? — Free Speech Center, Middle Tennessee State University · U.S. academic First Amendment center; free-speech oriented
- Law banning ballot selfies violates First Amendment, federal appeals court says — ABA Journal · U.S. center; American Bar Association legal press
- Crookston v. Johnson, No. 16-2490 (6th Cir. 2016) — slip opinion — U.S. Court of Appeals for the Sixth Circuit · U.S. federal court; primary source
- Ballot Selfies Report — Lawyers for Good Government · U.S. left; progressive legal-advocacy nonprofit founded after the 2016 election
- Is your ballot selfie legal? States differ on rules for sharing voting photos. — Cox Media Group · U.S. center; syndicated service journalism across Cox broadcast sites
- Ballot Selfie Ban Doesn't Flout Free Speech, NC Judge Rules — Law360 · U.S. center; paywalled legal trade press owned by LexisNexis