2020 IL App (5th) 190306
NOTICE
Decision filed 12/16/20. The
text of this decision may be NO. 5-19-0306
changed or corrected prior to
the filing of a Petition for IN THE
Rehearing or the disposition of
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
TRISTA OETTLE, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Clinton County.
)
v. ) No. 19-L-3
)
EVA GUTHRIE and WILLIAM J. CADIGAN, )
in His Official Capacity as Chairman of the )
Illinois State Board of Elections, )
)
Defendants )
)
(William J. Cadigan, Defendant-Appellee; ) Honorable
The People of the State of Illinois, Intervenor- ) Stanley M. Brandmeyer,
Appellee). ) Judge, presiding.
______________________________________________________________________________
JUSTICE WELCH delivered the judgment of the court, with opinion.
Justice Barberis concurred in the judgment and opinion.
Justice Cates specially concurred, with opinion.
OPINION
¶1 This appeal raises the issue of whether section 29-9 of the Election Code (10 ILCS 5/29-9
(West 2018)) is facially unconstitutional. For the reasons that follow, we find the statute to be
constitutional as it is a reasonable viewpoint-neutral regulation of a nonpublic forum and,
therefore, does not violate the first amendment of the United States Constitution, as applied to
the states through the fourteenth amendment.
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¶2 I. BACKGROUND
¶3 The following facts are undisputed. On November 6, 2018, the day of the midterm
elections, the plaintiff, Trista Oettle, reported to her assigned polling place in Clinton County to
cast her vote. One of the defendants, Eva Guthrie, the election judge on that date, was asked by
the plaintiff whether she could take a photograph with her completed ballot—commonly referred
to as a “ballot selfie.” Guthrie responded that the plaintiff could “absolutely not” take the picture,
and if the plaintiff did so, she “would go to prison.” Based on these statements, the plaintiff did
not take the photograph.
¶4 On November 18, 2018, the plaintiff filed a complaint in the circuit court of Clinton
County under 42 U.S.C. § 1983 (2018), claiming that section 29-9 of the Election Code (10 ILCS
5/29-9 (West 2018)) was unconstitutional as it violated her first amendment freedom of speech
rights. On January 17, 2019, the State filed a motion to intervene for the purpose of defending
the constitutionality of the Election Code, which the trial court granted. On May 7, 2019, the
plaintiff filed a first amended complaint that was substantially similar to the original complaint.
The first amended complaint named Guthrie as well as William J. Cadigan, who served as the
then chair of the Illinois State Board of Elections, as the defendants. Guthrie filed a motion to
dismiss pursuant to sections 2-615 and 2-619(a)(9) of the Code of Civil Procedure (Code) (735
ILCS 5/2-615, 2-619(a)(9) (West 2018)). Cadigan filed a combined motion to dismiss and for
summary judgment. On June 27, 2019, the court granted the motion to dismiss Guthrie from the
case, pursuant to section 2-619(a)(9) of the Code. Id. § 2-619(a)(9). On July 22, 2019, the court
entered a written order granting Cadigan’s motion to dismiss, pursuant to section 2-619 of the
Code. Id. § 2-619.
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¶5 II. ANALYSIS
¶6 The plaintiff appeals, arguing that section 29-9 of the Election Code, which criminalizes
the taking of a photograph of a completed ballot, is an unconstitutional restriction on political
speech. Under the Election Code (10 ILCS 5/29-9 (West 2018)), it is unlawful for a person to
knowingly mark his or her ballot so that it can be observed by another person. A violation
constitutes a Class 4 felony. Id. The constitutionality of a statute is a question of law that this
court reviews de novo. Walker v. McGuire, 2015 IL 117138, ¶ 12.
¶7 The first amendment of the United States Constitution, as applied to the states through
the fourteenth amendment, states that “Congress shall make no law *** abridging the freedom of
speech ***.” U.S. Const., amends. I, XIV. Interpreting the foregoing language, the United States
Supreme Court has ruled that a government “has no power to restrict expression because of its
message, its ideas, its subject matter, or its content.” Police Department of the City of Chicago v.
Mosley, 408 U.S. 92, 95 (1972). The protection of the first amendment is “at its peak” when the
speech occurs in a public forum. Silberberg v. Board of Elections of New York, 272 F. Supp. 3d
454, 467 (S.D.N.Y. 2017) (citing McCullen v. Coakley, 573 U.S. 464, 476 (2014)). However,
with regard to a nonpublic forum, “it is also well settled that the government need not permit all
forms of speech on property that it owns and controls.” International Society for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992) (citing United States Postal Service v.
Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 129 (1981), and Greer v. Spock, 424 U.S.
828 (1976)).
“Even protected speech is not equally permissible in all places and at all times. Nothing
in the Constitution requires the Government freely to grant access to all who wish to
exercise their right to free speech on every type of Government property without regard
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to the nature of the property or to the disruption that might be caused by the speaker’s
activities. Cf. Jones v. North Carolina Prisoners’ Labor Union, 433 U.S. 119, 136
(1977). Recognizing that the Government, ‘no less than a private owner of property, has
power to preserve the property under its control for the use to which it is lawfully
dedicated,’ Greer v. Spock, 424 U.S. 828, 836 (1976), the Court has adopted a forum
analysis as a means of determining when the Government’s interest in limiting the use of
its property to its intended purpose outweighs the interest of those wishing to use the
property for other purposes. Accordingly, the extent to which the Government can control
access depends on the nature of the relevant forum. *** [W]hen the Government has
intentionally designated a place or means of communication as a public forum speakers
cannot be excluded without a compelling governmental interest. Access to a nonpublic
forum, however, can be restricted as long as the restrictions are ‘reasonable and [are] not
an effort to suppress expression merely because public officials oppose the speaker’s
view.’ [Citation.]” Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473
U.S. 788, 799-800 (1985).
Thus, in this case, we need to determine whether government-issued election ballots are
considered public or nonpublic forums.
¶8 Here, we first recognize that a government-issued ballot is not a spatial or geographical
location. Nevertheless, as the Supreme Court has noted, “metaphysical” forums are subject to the
same forum analysis as a spatial forum. See Rosenberger v. Rector & Visitors of the University
of Virginia, 515 U.S. 819, 830 (1995) (forum analysis of university’s funding of printing for
student publications); Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46-
4
47 (1983) (forum analysis of school mail system); see also Cornelius, 473 U.S. at 801 (forum
analysis of charitable contribution program).
¶9 “Ballots serve primarily to elect candidates, not as forums for political expression.”
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 363 (1997) (citing Burdick v. Takushi,
504 U.S. 428, 438 (1992)). Here, ballots in the state of Illinois are not traditional public forums.
An election ballot is issued by the government for the primary function of electing candidates. It
is not a means through which a citizen traditionally expresses their political opinions. Instead, it
is government regulated property that serves a specific time-sensitive purpose. Therefore, we
find that a government-issued ballot is not a public forum and is instead a nonpublic forum.
¶ 10 The next step in our analysis addresses the content-based nature of the statute. A
restriction on speech is considered content based if, in order to determine whether the speech is
subject to a government restriction, one must look to “the topic discussed or the idea or message
expressed.” Reed v. Town of Gilbert, Arizona, 576 U.S. 155, 163 (2015). Here, because one must
look to whether the ballot is completed to determine whether the statute has been violated, the
statute is a content-based restriction.
¶ 11 Having found that section 29-9 of the Election Code is a content-based restriction of a
nonpublic forum, we must determine whether it is reasonable and viewpoint neutral. “[W]hen a
state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the
First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are
generally sufficient to justify’ the restrictions.” Burdick, 504 U.S. at 434 (quoting Anderson v.
Celebrezze, 460 U.S. 780, 788 (1983)).
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¶ 12 First, we find that section 29-9 of the Election Code is viewpoint-neutral, as it restricts
equally the photographing of any completed ballot, regardless of which candidates the voter
selects.
¶ 13 Second, as to whether section 29-9 of the Election Code is reasonable, “States may, and
inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election-
and campaign-related disorder.” Timmons, 520 U.S. at 358 (citing Burdick, 504 U.S. at 433).
“Common sense, as well as constitutional law, compels the conclusion that government
must play an active role in structuring elections; ‘as a practical matter, there must be a
substantial regulation of elections if they are to be fair and honest and if some sort of
order, rather than chaos, is to accompany the democratic processes.’ ” Burdick, 504 U.S.
at 433 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).
As the Appellate Court, First District, has previously noted, “Section 29-9 of the [Election]
Code, the unlawful-observation-of-voting statute, safeguards voter privacy, protecting voters
from potential coercion, intimidation and other influences and thereby preserves the integrity of
the ballot.” People v. Deganutti, 348 Ill. App. 3d 512, 520 (2004).
¶ 14 In considering these cases, we find the statute to be a reasonable restriction, as it neither
limits a voter’s access to a ballot, nor limits a voter’s choice in voting. Instead, it effectually
limits an outsider’s access to viewing a voter’s completed ballot. In making this determination,
we note that a ballot selfie is a simple means by which a person could verify the vote of another.
Absent the statute, a ballot selfie could be used to verify that a person has voted a certain way in
an attempt to coerce or purchase votes. For example, an employer could use an employee’s ballot
selfie to verify that an employee has voted the way preferred by the employer under the threat of
termination. Additionally, the existence or practice of the ballot selfie could influence voters to
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cast ballots for candidates they believe are more publicly popular, rather than their personal
preferred choice. There are, in fact, countless scenarios and hypothetical situations in which a
ballot selfie could be used to coerce voters. Though the plaintiff is correct that other statutes exist
criminalizing the purchasing of votes and voter intimidation, those statutes do not address the
potential societal influences perpetuated through exposure to public opinion. Ballot secrecy is
one of the most important protections for a voter because it ensures that a voter may vote his or
her conscience, regardless of the person’s public persona. For example, a person standing on a
public street, wearing a shirt supporting “party A’s” candidate and vocally encouraging others to
vote for party A’s candidate, is still protected from any potential consequences should he or she
in fact choose to vote for party B’s candidate. T-shirts and public proclamations do not have the
effect of casting a vote for a candidate, only the ballot has that power. Therefore, ballot secrecy
is of the utmost importance in protecting our system of democracy. Section 29-9 of the Election
Code protects a voter’s right to truly vote his or her conscience, free from coercion, influence, or
bribery.
¶ 15 In addition to the protection of ballot secrecy, the statute protects against inefficient use
of time at the polls. Allowing each voter to pose with and photograph a completed ballot would
inevitably lead to delays and disorganization. Accordingly, we find it to be a reasonable
restriction on the use of completed ballots.
¶ 16 III. CONCLUSION
¶ 17 Therefore, we affirm the circuit court of Clinton County’s dismissal of the plaintiff’s
complaint as section 29-9 of the Election Code (10 ILCS 5/29-9 (West 2018)) is constitutional as
it does not violate the plaintiff’s protections under the first amendment of the United States
Constitution.
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¶ 18 Affirmed.
¶ 19 JUSTICE CATES, specially concurring:
¶ 20 I concur with the majority’s decision to affirm the circuit court’s dismissal of the
plaintiff’s complaint, but for different reasons. I write separately because I am concerned,
particularly, for the newly-registered and youngest Illinois voters, whose sole purpose in taking a
“ballot selfie” is to display their enthusiasm, civic pride, and patriotism. The basis for my special
concurrence in the majority’s decision, however, derives from my belief that this matter was not
ripe for judicial review, as the plaintiff did not take the “selfie” and suffered no harm.
¶ 21 Section 29-9 of the Election Code provides as follows:
Ҥ 29-9. Unlawful observation of voting. Except as permitted by this Code, any
person who knowingly marks his ballot or casts his vote on a voting machine or voting
device so that it can be observed by another person, and any person who knowingly
observes another person lawfully marking a ballot or lawfully casting his vote on a voting
machine or voting device, shall be guilty of a Class 4 felony.” 10 ILCS 5/29-9 (West
2018).
¶ 22 Section 29-9 of the Election Code protects a voter’s right to vote his or her conscience,
free from coercion, influence, or bribery. The current version of this section was enacted in 1973
(Ill. Rev. Stat. 1973, ch. 46, § 29-9), decades before the advent of the “selfie.” Nevertheless,
under section 29-9 of the Election Code, as currently interpreted by some, the mere taking of a
“ballot selfie” may result in a serious felony charge against an unwitting voter. Such a penalty
would, in my view, seem to be an unreasonable restriction upon an individual’s first amendment
rights, when weighed against the governmental interests sought to be protected.
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¶ 23 In recent years, the Illinois General Assembly has considered amendments to section 29-
9 of the Election Code to provide that a person is not prohibited from photographing his or her
own ballot during the voting process. See, e.g., 101st Ill. Gen. Assem., House Bill 4104, 2020
Sess. However, until an amendment is enacted, those who wish to take a selfie as a display of
civic pride might consider taking the photograph of himself or herself, with an “I voted” sticker,
outside the area where ballots are cast.
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No. 5-19-0306
Cite as: Oettle v. Guthrie, 2020 IL App (5th) 190306
Decision Under Review: Appeal from the Circuit Court of Clinton County, No. 19-L-3; the
Hon. Stanley M. Brandmeyer, Judge, presiding.
Attorneys Peter J. Maag, of Maag Law Firm, LLC, of Wood River, for
for appellant.
Appellant:
Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,
for Solicitor General, and Frank H. Bieszczat, Assistant Attorney
Appellee: General, of counsel), for appellees.
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