Last modified: 11/8/2014 1:10:00 AM
Jonathan Spear barely made it to the polls in Hampton before they closed at 8 p.m. on Tuesday.
He filled out his ballot and voted for all Republicans, with one exception: He just couldn’t bring himself to vote for Scott Brown. Instead, he wrote in the name of Revolutionary War Gen. John Stark.
When he was done, he snapped a photo of himself inside the voting booth holding his completed ballot, a quick ballot selfie. Then, he decided to commit a crime – he posted the photo on Twitter.
And Spear knew exactly what he was doing.
“It’s a stupid law, and I don’t agree with it,” he said. “I’ve always been a bit of a rebel, and nothing beats a little civil disobedience to get your point across.”
State law says it’s illegal to show another person your ballot, including through social media.
“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,” RSA 659:35 says. “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.”
The Legislature changed the law last session, adding the “social media” part. It has been illegal to show your ballot to someone else for a long time, but questions came up about the law after people started posting photos of their completed ballots online.
During September’s primary, a few people, including Lancaster Republican state Rep. Leon Rideout, intentionally posted photos of their ballots to challenge the law.
By Tuesday’s general election, it had become a mini-movement and newly re-elected legislators now say they will move to repeal the law.
Dozens of photos popped up on social media Tuesday, in part because of a Facebook group called NH Ballot Selfies. The group has 14 members, several of whom posted photos of their ballots. Searching Twitter for #ballotselfie comes up with more people posting photos of their ballots, not out of ignorance, but as a form of civil disobedience.
“I think they are going to see how pointless it is because so many people have done it,” Spear said. “The ‘Live Free or Die’ slogan needs to be more than words scribbled on a piece of paper. People need to remember what it means.”
Breaking the ballot-selfie law is a violation and carries a fine of up to $1,000.
“We break the law any time we drive 66 miles per hour on I93,” said Republican state Rep. John Burt, who posted his ballot online after the primary. “That’s a violation, too.”
Burt took a photo of his ballot Tuesday, but hadn’t posted it yet. He said yesterday he planned to put it on Facebook “today or tomorrow.”
“There’s a lot of people who want to show how silly this law is,” Burt said. “If I want to take a picture of my ballot, who cares! That’s how silly this is.”
When Burt, of Goffstown, posted a photo of his completed ballot after the primary, he thought the bill that passed through the Democrat-controlled House of Representatives had been killed by the Senate. He was wrong.
Now that he won re-election Tuesday, Burt said he and Rideout are going to co-sponsor legislation to repeal “this silly bill.”
“We don’t have the right governor for repeal, but hopefully we have to votes to override, or she lets it go through,” Burt said of Democratic Gov. Maggie Hassan.
The law was legally challenged Friday by the New Hampshire Civil Liberties Union in federal court, which argued it violated the First Amendment by banning “pure political speech.”
“What this law ignores is that displaying a photograph of a marked ballot on the Internet is a powerful form of political speech that conveys various constitutionally-protected messages that have no relationship to vote buying or voter coercion,” the lawsuit states. “This form of speech can convey a sense of pride from an 18-year-old, newly-minted voter who is enthusiastic about voting in her first presidential selection.”
Despite the lawsuit, the ban remains on the books.
“We’re still enforcing the law as it is currently written,” said Stephen LaBonte, the assistant attorney general in charge of elections enforcement.
LaBonte said his office hadn’t received any complaints about people posting their ballots, and they hadn’t been out searching either.
“If someone sees an issue, they have the right to report that to the attorney general’s office,” he said. “We don’t have staff searching social media looking for these things.”
Manchester attorney Brandon Ross posted his ballot online 10 days after the primary once he found out it was a violation and not a misdemeanor. He posted it at 11:29 p.m., with the message, “Come at me, bro.”
“It’s the same as that little sticker, that says, ‘I voted,’ ” Ross said. “It’s literally a button push to share with the rest of the world.”
He’s now one of the plaintiffs in the NHCLU suit challenging the law.
“I started thinking this looks unconstitutional on this face,” Ross said. “I tend to take the civil liberties issues pretty seriously. I started thinking maybe I should challenge this.”
He got in touch with the NHCLU, and they were interested in taking on the case.
Ross said he didn’t post his ballot online this time because of the potential for the fine. He pays his bills like everybody else, and a potential $1,000 penalty is a lot.
One thing the lawsuit didn’t do is prevent the law from being enforced this election. So anyone who posted their ballots online during Tuesday’s election could still be prosecuted.
“No one is going to die because a judge doesn’t stop it immediately,” Ross said. “Hopefully, it will be resolved in a civil way in the courts, or preferably in the Legislature.”
(Jonathan Van Fleet can be reached at 369-3303 or jvanfleet@cmonitor.com.)