Keeping people from taking photographs of their own ballot to preserve the sanctity of the polling place is like “burning down the house to roast a pig,” a federal appeals court said Wednesday as it ended New Hampshire’s ban on so-called ballot selfies.
The three judges from the First Circuit U.S. Court of Appeals in Boston unanimously upheld a lower court ruling that had struck down the state ban. Wednesday’s 22-page ruling agreed that the New Hampshire law was a “content-based restriction on speech” and thus unconstitutional.
“New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger. We repeat the old adage: A picture is worth a thousand words,” the ruling said.
The ruling was particularly harsh on the inability of New Hampshire lawmakers to point to any harm done by ballot selfies, despite the state’s concern that they facilitate vote buying or vote coercion, because they allow people to prove how they cast their ballot.
“Digital photography, the internet, and social media are not unknown quantities – they have been ubiquitous for several election cycles, without being shown to have the effect of furthering vote buying or voter intimidation. As the plaintiffs note, ‘small cameras’ and digital photography ‘have been in use for at least 15 years,’ and New Hampshire cannot identify a single complaint of vote buying or intimidation related to a voter’s publishing a photograph of a marked ballot during that period,” the ruling reads.
“Indeed, Secretary (of State William) Gardner has admitted that New Hampshire has not received any complaints of vote buying or voter intimidation since at least 1976, nor has he pointed to any such incidents since the nineteenth century.”
“A ban on ballot selfies would suppress a large swath of political speech,” the ruling said, noting that “according to the Pew Research Center, in the 2012 election, ‘22 percent of registered voters have let others know how they voted on a social networking site such as Facebook or Twitter.’ ”
It is not known whether New Hampshire plans to appeal the decision to the U.S. Supreme Court.
The ballot selfie law came out of existing state laws dating back to the 1970s, which forbade voters from showing their completed ballot to another person “with the intention of letting it be known how he is about to vote,” and from placing a “distinguishing mark” on the ballot so it could be identified after the election is over.
That last statement was long construed to include photographs, which is why polling officials didn’t allow cameras in voting booths before cell phone cameras bypassed the rule.
The law, like similar laws in many states, dates from concerns first raised in the 19th century when it wasn’t uncommon for campaigns to offer money or liquor at a polling place. Voters showed the marked ballot and got a payoff. Preventing voters from showing a completed ballot, or from marking it in a way that could be identified later, was designed to prevent that.
The issue of cell phone camera photos being displayed online arose in 2013 in an election dispute in Nashua, and led to much debate about whether what became known as ballot selfies should be allowed.
The legislature doubled down in 2014, adding wording that “no voters shall take a digital image” of their ballot “and share the image via social media or other means,” or risk fines of up to $1,000.
Three New Hampshire voters, including state Rep. Leon Rideout, deliberately broke the law (one showed a ballot on which he had written in his dog’s name) and sued the state, with support from the New Hampshire chapter of the ACLU, among others.
U.S. District Court Judge Paul Barbadoro agreed with them in August 2015 and overturned the state law. New Hampshire appealed, leading to Wednesday’s U.S. Circuit Court ruling.
The ruling came from justices Sandra Lynch, Kermit Lipez, and O. Rogeriee Thompson.
(David Brooks can be reached at 369-3313 or dbrooks@cmonitor.com or on Twitter @GraniteGeek)
