Yes, ‘ballot selfies’ are legal. For now. 

  • These signs from the 2014 elections are no longer in effect, because a federal judge overturned the state law. Lantos Foundation for Human Rights and Justice—Courtesy

Monitor Staff
Published: 9/13/2016 12:14:19 AM

Yes, you can legally take a “ballot selfie.”

It might become illegal again soon, but as of Sept. 13, 2016, you can point your smart phone at your completed ballot and share the pic far and wide, without fear that you’ll hear from the authorities.

That’s really all you want to know about the intriguing but convoluted debate over the intersection of selfie culture and the sanctity of the voting booth, a debate that has percolated through New Hampshire for three years.

But the wrangling is far from over, since the law is being debated today in a federal courthouse in Boston, so perhaps a recap is in order.

Why is this even an issue?

Like most states, New Hampshire has long had a law on its books designed to prevent people from proving how they voted.

The law, which dated back many decades, 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 construed to include photographs, which is why ballot officials didn’t allow cameras in polling booths.

Such laws were born out of vote-buying habits in the 19th century, when it wasn’t uncommon for campaigns to offer money or liquor at a polling place. You showed them your marked ballot and got your payoff.

Preventing voters from showing a completed ballot, or from marking it in a way that could identify it later, was designed to prevent both vote buying and vote coercion. Your boss might threaten to fire you if you didn’t support the company candidate, but since there was no way anybody could be certain what you actually did inside the voting booth, that was a toothless threat.

Democracy was preserved, and nobody thought about it much.

If nobody thought about it, why are we still fighting?

Blame cameras on smart phones, Facebook and Instagram, and the arrival of selfies.

The New Hampshire law drew little attention until 2013, when a controversy arose in Nashua around a few candidates who posted pictures of their ballot online, showing that they voted for themselves.

Their opponents complained to the press, the term “ballot selfie” was born, and the state attorney general’s office got involved.

Despite a lot of snark in online communities, as well as efforts to have the law repealed, the state reiterated the illegality of taking or sharing photos of completed ballots. In 2014, the legislature clarified the law, specifically saying “no voters shall take a digital image” of their ballot “and share the image via social media or other means.”

Breaking this law was a violation, meaning that fines of up to $1,000 were in order.

At the September 2014 state primary, prominent signs titled “Prohibited Acts While Voting” showed up at polling places, pointing out the law.

Despite that, many people, including at least two state representatives, posted photos of their ballot online. An investigation was launched, complete with interviews by investigators.

Wait a minute, I thought you said it was legal?

Among those who have fought the ballot selfie ban is the American Civil Liberties Union. (Most of the state elected officials publicly fighting it are Republican – this is an issue that, regardless of your opinion, crosses partisan boundaries.)

The ACLU sued to overturn the law and in August 2015, U.S. District Court Judge Paul Barbadoro reversed the law, saying it harmed free speech and is unnecessary because New Hampshire couldn’t point to any election fraud examples.

New Hampshire appealed the ruling – the appeal is being argued today in federal court in Boston. So it’s possible that the federal ruling will be overturned and ballot selfies will again be illegal, come November.

But the 2015 ruling was not stayed while the appeals court ponders it, which means the federal ruling is still in effect and the anti-ballot selfie state law cannot be enforced.

So snap away, if you must.

You say we’re not alone in this debate?

The ACLU says that since this issue cropped up at least five states, as conservative as Utah and Arizona and as crunchy-granola as Oregon and California, have amended their law to say that it’s okay to share your ballot on social media.

What this means for the future of the sanctity of the ballot remains to be seen. It’s easy to imagine how it could be a problem.

Right now you can agree in public with your friends or your family, or the client whose business supports your job, about a candidate or issue initiative on the ballot and still follow your conscience in the polling place.

But if everybody else is saying “Show your support!!!” with their ballot photo online, it gets a lot harder to do something different. The social pressure gets ramped up considerably.

Maybe I’ll stick to just posting photos of what I ate for lunch.

Good idea.

David Brooks bio photo

David Brooks is a reporter and the writer of the sci/tech column Granite Geek and blog, as well as moderator of Science Cafe Concord events. After obtaining a bachelor’s degree in mathematics he became a newspaperman, working in Virginia and Tennessee before spending 28 years at the Nashua Telegraph . He joined the Monitor in 2015.

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