Go Ahead and Take That Ballot Selfie: Federal Court Strikes Down NH Law



[Image courtesy of keanxchange]

Last December, I wrote about a New Hampshire lawsuit by the ACLU challenging the ban on “ballot selfies” – snapping and sharing a picture of a completed ballot. I went on record saying I’m not a fan:

I see where the ACLU is coming from – it’s always uncomfortable when voters are at risk of criminal liability – but in this case, given that there so (SO!) many other ways to engage in protected political speech, allowing voters to photograph their marked ballots – which does facilitate vote buying or coercion, however rare – is a selfie too far. We already allow the election process some small protection from political speech in the form of polling place electioneering bans (which have been upheld) and these selfie laws would seem to deserve the same deference.

Well, you can now add this case to the list of reasons I’m not a federal judge, because yesterday a Concord trial court ruled that the state’s ban on ballot selfies is unconstitutional. [UPDATE: The opinion, courtesy of Rick Hasen at Election Law Blog, is here.] The state had argued (as I do) that allowing ballot selfies compromises the secrecy of the ballot, but the judge was unconvinced.  WMUR-9 has more on the ruling:

New Hampshire’s law banning voters from posting pictures of completed ballots online squelches free speech and isn’t needed to prevent election fraud, a federal judge ruled Tuesday.

In his ruling, U.S. District Court Judge Paul Barbadoro said it’s speculation to think people will be coerced into selling votes if they can post the image online. During arguments in June, lawyers for the state acknowledged there are no known cases of vote-buying or coercion in New Hampshire.

State lawmakers who supported the bill said someone who wanted to coerce voters could insist on seeing pictures of their ballots to prove how they voted. With the proliferation of ways to share images – including Facebook, Twitter and Instagram — Assistant Attorney General Stephen LaBonte said the Legislature had a legitimate concern about voter fraud amid new technology.

During arguments, Barbadoro wasn’t buying it.

“You think people are going to post a photo on Facebook?” he said then. “‘I’m a proud seller of my vote! I just sold my vote for $25!’ At some level, you have to use common sense.”

In the wake of the ruling, the law – which would have fined voters up to $1,000 for posting a selfie – is unenforceable unless the ruling is appealed. Obviously, the plaintiffs were pleased:

The American Civil Liberties Union-New Hampshire brought the case on behalf of three people who were investigated after posting ballot photos last year, including one voter who said he cast a ballot for his dead dog because he didn’t like any of the candidates.

“Today’s decision is a victory for the First Amendment,” Gilles Bissonnette, legal director of the ACLU-NH, said in a prepared statement. “Political speech is essential to a functioning democracy. The First Amendment does not allow the state to, as it was doing here, broadly ban innocent political speech with the hope that such a sweeping ban would address underlying criminal conduct.”

Again, I see where the ACLU (and Judge Barbadoro) are coming from, but I still think ballot selfies create a vulnerability in the election process that vastly outweighs any societal or personal benefit the selfie brings. Perhaps that’s generational, but I think it’s something worth thinking – and worrying – about going forward. I also hope that this ruling (if it stands) doesn’t become the first step toward a more permissive attitude toward electioneering inside polling places – a much more sweeping limitation on the First Amendment that has been upheld time and again.

But again, maybe I’m just getting old – this is a fascinating legal issue and it will be interesting to see how it plays out on appeal (if one happens) as well as how the Granite State manages “ballot selfies” going forward.

Fix your hair, say “cheese” – and stay tuned …

3 Comments on "Go Ahead and Take That Ballot Selfie: Federal Court Strikes Down NH Law"

  1. Douglas Kellner | August 14, 2015 at 3:22 pm | Reply

    Many states, including New York, have similar statutes. New York’s law, which makes it a crime to show a voted ballot to another person to reveal its contents, dates back to the 19th century, shortly after the 1880 law that provided for written ballots marked secretly in a voting booth. Vote buying was rampant, but virtually unprovable. The only way to stop vote buying was to make it impossible for the buyer to determine how the seller actually voted.

    One could argue that showing a voted ballot is a voluntary waiver of the
    secret ballot. But the secret ballot is not just a right of the
    particular voter, but it is a right of the entire electorate to insulate
    each voter from potential intimidation.

    I disagree with the court’s decision and I hope Secretary Gardner will appeal. The Vermont law, like the New York statute, is an appropriate regulation to protect everyone’s right to have voters mark their ballots
    confidentially. That does not stop anyone from telling the world how they voted–but the law does not allow them to prove it.

    Douglas A. Kellner
    Co-Chair, New York State Board of Elections

  2. Mr. Kellner puts it in a nutshell. One would think even a Federal judge could understand this principle, sarcastic comments about common sense notwithstanding. Equally important with concerns about vote-buying, I can imagine employers: “Prove to me you voted the right way, or you’re fired.” Perhaps it would not be stated so bluntly… employees would be ‘invited’ to post their ballots to the company web page as an expression of solidarity. Would you go along?

  3. I’m having similar ideas on this matter Mark.

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