UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

ALISON KAREEM, ┐ Plaintiff-Appellant, │ │ │ v. > No. 23-3330 │ │ CUYAHOGA COUNTY BOARD OF ELECTIONS; FRANK │ LAROSE, Ohio Secretary of State; MICHAEL C. │ O’MALLEY, Cuyahoga County Prosecuting Attorney, │ Defendants-Appellees. │ ┘

Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:20-cv-02457—David A. Ruiz, District Judge.

Decided and Filed: March 14, 2024

Before: BATCHELDER, CLAY, and GIBBONS, Circuit Judges.

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COUNSEL ON BRIEF: Curt C. Hartman, THE LAW FIRM OF CURT C. HARTMAN, Cincinnati, Ohio, Christopher P. Finney, FINNEY LAW FIRM LLC, Cincinnati, Ohio, for Appellant. Mark R. Musson, CUYAHOGA COUNTY, Cleveland, Ohio, for Cuyahoga County Appellees. Benjamin M. Flowers, Mathura J. Sridharan, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee Frank LaRose.

CLAY, J., delivered the opinion of the court in which BATCHELDER and GIBBONS, JJ., joined. GIBBBONS, J. (pg. 13), delivered a separate concurring opinion. No. 23-3330 Kareem v. Cuyahoga Cnty. Bd. of Elections Page 2

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OPINION _________________

CLAY, Circuit Judge. Plaintiff Alison Kareem appeals the district court’s grant of summary judgment to Defendants Ohio Secretary of State Frank LaRose, the Cuyahoga County Board of Elections, and Cuyahoga County Prosecuting Attorney Michael C. O’Malley. Kareem sued Defendants on the grounds that two state election laws, Ohio Rev. Code §§ 3501.35(A)(4) and 3599.20, violated her free speech rights under the First Amendment by prohibiting her from displaying her marked ballot to others. The district court granted Defendants’ motions for summary judgment because it concluded that Kareem lacked Article III standing. For the reasons set forth below, we REVERSE the district court’s order and REMAND for further proceedings in accordance with this opinion.

I. BACKGROUND

On October 20, 2020, while voting in the November 2020 general election, Plaintiff Alison Kareem took a photograph with her marked ballot, colloquially referred to as a “ballot selfie.” According to Kareem, she wished to display this photograph online to mobilize support for her preferred candidates. However, she did not display the photograph, nor has she displayed any ballot photographs in subsequent elections, because of Ohio laws that prohibit the display of marked ballots. “If state law did not prohibit the posting or publication of a ballot selfie,” Kareem states that she “would have posted on-line and disseminated the ballot selfie from October 2020” and “taken, posted, and disseminated a ballot selfie at subsequent elections.” Kareem Decl., R. 28, Page ID #570.1

The state laws to which Kareem refers are Ohio Rev. Code § 3501.35(A)(4) and Ohio Rev. Code § 3599.20, both of which carry a potential term of imprisonment. Section 3501.35(A)(4) prohibits “[e]xhibit[ing]” a “ballot which the elector intends to cast.” Ohio Rev.