Pics or It Didn’t Happen: First Circuit Hears Appeal to Revive NH Voting Booth Selfie Ban

September 19, 2016

With the largest state legislature in the country, national media coverage of the state’s presidential primary, and an electorate that has sided with the winner in eight of the last ten elections, citizens of New Hampshire take great pride in their influence on the political process. When your state motto is “Live Free or Die,” one would think that individual liberties like freedom of speech would be left alone by the legislature. However, in 2014 New Hampshire enacted a law making it unlawful for voters to take and share pictures of completed ballots. Violators could be hit with up to a $1,000 fine. Yes, one thousand dollars for a selfie.
The statute read: No voter shall allow his or her ballot to be seen by any person with the intention of letting it be known how he or she is about to vote or how he or she has voted except as provided in RSA 659:20.1 This prohibition shall include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.
Not surprisingly, law was struck down by the United States District Court for the District of New Hampshire in August of 2015 for unconstitutionally restricting content-based speech. Applying strict scrutiny, the court found that the state’s interest in preventing vote buying or voter coercion was insufficiently compelling to overcome the people’s interest in political expression. Moreover, punishing individuals not involved in vote buying schemes made the law overinclusive and thus not narrowly tailored to fit the government’s already questionable goal.
Why is this important now? Defendant, New Hampshire Secretary of State Bill Gardner, appealed the district court decision to the Court of Appeals for the First Circuit on the theory that the law restricts the manner of speech rather than the content and thus should not have received strict scrutiny. The parties argued in front of the First Circuit panel on September 13, 2016, ironically the same day as New Hampshire’s state primary. With the general election looming in November, and roughly forty-four percent of U.S. adults using social media for information about the presidential election, New Hampshire voters will wait on the edge of their seats to find out what picture they can pair with the caption #ImWithHer or #MakeAmericaGreatAgain.
Associate attorney general Stephen LaBonte, arguing for Gardner, reiterated the state’s concern that vote buying and voter coercion must be prevented. He said that voters posting pictures of their ballots to social media networks like Facebook, Instagram, and Twitter opens the door for deep-pocketed organizations to pay voters for their support. However, the First Circuit panel saw no new evidence of any vote buying conspiracies.
Speaking of deep pockets, $20-billion-valued social media giant Snapchat entered the ring in April of 2016 behind the American Civil Liberties Union to oppose the law.

Snapchat’s attorneys filed an amicus brief arguing that “ballot selfies and similar digital information-sharing are important ways that younger voters participate in the political process and make their voices heard.”

A skeptical First Circuit panel appeared to side with the district court opinion at oral argument when the state presented its case. When Circuit Judge Sandra Lynch asked what was wrong with a voter choosing to publish his or her vote, LaBonte answered, “[t]hat system can be used to intimidate, and purchase votes.” Circuit Judge Kermit Lipez quickly responded, “You have no evidence of that. None.”
While the New Hampshire law looks like it will be struck down once again and voters will be able to take their selfies or even go “Live” on Facebook in the voting booth in November, only time will tell whether the New Hampshire legislature will take another stab at curbing the vote buying problem it claims to have. What should voters and politically active millennials take away from this case? Check your state’s laws before you show the world your ballot.