Voter ID laws are currently a subject of great controversy in the US.
One side claims that they are an attempt to raise the cost of voting, and by so doing suppress certain demographics' votes. The other side claims that forbidding requiring of IDs invites fraud, and that the fraud would go undetected because there are no uniform standards for detecting it.

Without evaluating merits of those arguments (which are political rather than legal), what if it were proposed that everyone's picture is taken, and stored for a limited period of time, before going into the voting booth?

Let's say the pictures are stored for a period of 3 years (or so). Obviously this would raise privacy concerns, but the votes themselves would remain private. And this would create a verifiable proof of how many people actually voted (but not of how they voted).

Is there any current case law which would make this blatantly unconstitutional? Are there any Federal laws which might make this potentially illegal?

  • This seems to be a way of addressing issues as to the identity of the actual voters. The number who voted would be reliably recorded by names checked of voter registration lists as people voted. Oct 22 '21 at 20:17
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    Have you considered how this would apply for postal and proxy voters? i.e. those who cannot cast a ballot on the day, due to sickness, work commitments, etc. These are allegedly the most likely to be fraudulent, according to some. Oct 22 '21 at 23:37
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    @NeilTarrant that's outside the scope of the question. The question is whether this would be legal -- not practical.
    – grovkin
    Oct 23 '21 at 0:24

The US election authorities already record who voted in which elections, and that information is a matter of public record. When I was active in politics some years ago, and at one point a candidate for local office, my campaign and others routinely purchased from the state a "voter list" for each district. This list showed each registered voter, with that person's name, address, age (to the nearest year), party of registration if any, and in which of the last several (I think 10) elections that person had voted. These were delivered in electronic form, and could be sorted and analyzed in whatever way the purchaser pleased. I understand that similar lists are available in every US state,

I think from a legal point of view, a picture would reveal no more information than these already-public lists, and since they have not been successfully challenged as unconstitutional, I don't see that the pictures would be subject to such a challenge, unless it could be shown that taking such pictures had a chilling effect, that is, that taking them made certain categories of voters, such as minority voters, less likely to vote.

I am not aware of any specific federal or state laws on taking pictures of voters. But if there were a chilling effect, that would probably violate the Equal Protection Clause of the Federal Fourteenth amendment. That clause has been central, or at least significant, in most challenges to voter restrictions, both successful and unsuccessful.

But since, as far as I know, no state or other US jurisdiction has tried this, there is no caselaw on point, and one cannot be sure how such a case would be resolved.

Whether this would be good policy is a very different question, and where it would be politically acceptable is yet another. Neither of those are on topic here on Law.se, although they might be on Politics.SE.

  • Is there a Federal law which would automatically allow for a challenge to such a state attempt if it can be shown that it does cause a chilling effect?
    – grovkin
    Oct 23 '21 at 0:20
  • @grovkin I am not aware of any specific federal laws on this topic. But if the were a chilling effect, that would probably violate the Equal protection Clause of the Federal Fourteenth amendment, so a specific law might not be needed. That clause has been central, or at least significant, in most challenges to voter restrictions, both successful and unsuccessful. Oct 23 '21 at 0:25
  • can you, please, add this information to the answer? I think would improve it a great deal.
    – grovkin
    Oct 23 '21 at 8:10
  • @grovkin Done, with a few edits Oct 23 '21 at 17:03

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