Ballot Facebook photo results in felony charge in Wisconsin

PORT WASHINGTON, WIS. >> A Wisconsin man accused of posting his marked election ballot on social media has been charged with a felony that carries possible incarceration if he’s convicted in what a prosecutor calls a “test case.”

Paul Buzzell, 52, of Mequon, appeared in Ozaukee County Circuit Court Monday where a judge found probable cause to proceed with the case and set a $500 signature bond.

According to a criminal complaint, Buzzell, a Mequon-Thiensville School Board member, posted a photo of his completed April ballot on his Facebook page. It resulted in a voter fraud charge that includes a maximum 3 ½ years behind bars and up to $10,000 in fines upon conviction.

Ozaukee County District Attorney Adam Gerol, a Republican, says he is trying to use the criminal complaint to resolve an issue.

“You could say it’s a test case,” Gerol said. “The best thing that could come of this would be an appellate decision as to whether it violates the First Amendment or not.”

There have been contradicting court rulings in other states following the 2016 election, including in New Hampshire where a federal judge held that a state law barring an individual’s right to publish their ballot violated the First Amendment. The U.S. Supreme Court refused to hear an appeal of that ruling.

Wisconsin law says it’s 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. The state Senate in 2020 passed a bill to legalize the taking of so-called ballot selfies, but it died in the Assembly. County election clerks opposed changing the law, saying the ban is intended to protect ballot secrecy. Neighboring Michigan changed its law in 2019 to legalize ballot selfies.

Candidates for office in Wisconsin and others have sporadically posted photos of their completed ballots over the years, in apparent violation of the law, but charges were not brought.

Gerol said that while the felony doesn’t necessarily fit the behavior, a prosecutor can’t choose the penalties to apply. That’s up to legislators.