Gasp! Say it isn’t so! Democratic Montana State Representative Kendall Van Dyk who is challenging Senator Roy Brown in Montana’s Senate District 25, posted photos of his completed voting ballots on his Facebook page. One was posted May 11, 2010 and the other was posted October 5, 2010.
Based on my admittedly amateur interpretation of Montana Elections Law after researching the statutes here, it appears that Montana’s fearless environmental savior, Representative Kendall Van Dyk, is indeed in violation of MCA 13-35-201 for photographing and posting his marked ballot on his Facebook profile for all to view. He completed his absentee ballot and posted an image of it on his Facebook profile on May 11, 2010 with the words ” hope your ballot looks like this”. After completing his general election absentee ballot October 5, 2010, he again violated Montana election code when he photographed his completed ballot and posted the image on his Facebook profile with a similar message that served to potentially bully or intimidate constituents who have yet to vote.
13-35-201. Electors and ballots. (1) An elector may not show the contents of the elector’s ballot to anyone after it is marked. An elector may not place any mark upon the ballot by which it may be identified as the one voted by the elector.
The Official Photoprez.com blog is a free platform for sharing and viewing photos of the American election experience. Their article, How to Photograph the Election and Your Vote (November 2008), lists the election laws and interpretations for each state as a guide to the legality of photographing votes on election day. The section on Montana listed the following information and FAQ. I have underlined the core components related to this particular violation by Rep Van Dyk:
Can you photograph or video your vote inside the polling station–either a paper ballot or electronic screen?
Not after marked: A Montana voter “may not show the contents of [his or her] ballot to anyone after it is marked.” MT ST 13-35-201
(available at http://data.opi.mt.gov/bills/MCA/13/35/13-35-201.htm). Photographing or videotaping an unmarked ballot does not appear to be restricted.
Can you photograph or video yourself voting inside the polling station?
Probably: Although a voter is restricted from disclosing the contents of his or her marked ballot, photographing or videotaping the ballot before marking a vote, or the voting process generally does not appear to be restricted.
Can you photograph or video others voting or the working of the polling station from within it?
Maybe: You may not photograph or video any voters marked ballot, but there does not appear to be any restriction on photographing or videotaping other voters within the polling place itself. Election officials in Montana restrict media access to the actual polling place, but you should be able to photograph or video the operation of the polling place while you are voting yourself. If your actions are seen as disruptive, however, election officials may ask you to stop. To be safe, you should consult the chief election judge about how best to record your voting experience while minimizing disruption. See MT ST 13-35-203 (available at
http://data.opi.mt.gov/bills/MCA/13/35/13-35-203.htm), MT ST 13-35-218 (available at http://data.opi.mt.gov/bills/MCA/13/35/13-35-218.htm).
Can you photograph or video the polling station from outside it?
There does not appear to be any restriction on photography or videotaping a polling place from outside the actual building.
Can you photograph or video people leaving the voting station?
Without delving into rights of publicity, there doesn’t appear to be any restriction on photographing or videotaping people leaving the polling place.
Can you ask people questions leaving the polling station and can you video or blog their answers?
Questions about votes must be outside: Montana does not allow asking anyone “within a polling place or any building in which an election is being held” about how they voted or plan to vote. MT ST 13-35-211(3) (available at http://data.opi.mt.gov/bills/MCA/13/35/13-35-211.htm). Additionally, the Montana secretary of state has restricted media access to the actual polling room. It is likely that once you have completed voting, you will be required to leave the polling room, but questions unrelated to votes for/against a particular candidate or initiative should be permissible there.
While some may feel that even mentioning these violations of our state’s election laws is being small-minded (or in the words of Mr Van Dyk, “intellectually small”) or petty, we must not forget that Mr Van Dyk holds his opponents to often impossible standards of perfection that he obviously isn’t willing to maintain for himself. For instance, he filed a complaint against Roy Brown alleging violations of MCA 13-37-217, 13-37-229, and 13-37-231 concerning a $100 campaign contribution made to Brown in the name David Berg instead of David Fulwiler (David Fulwiler and David Berg are actually the same person which Mr Van Dyk acknowledged). The Commissioner of Political Practices dismissed the complaint after determining that it held no merit whatsoever.
I’m typically not one to be preoccupied with trivial matters but this candidate seems almost desperate in his paltry attempt to discredit Roy Brown over a $100 campaign contribution. In the today’s dirty political world, I doubt that Van Dyk’s minor violations of election ethics laws but if one plans to dish it out, they also need to be prepared to take it.