Federal Court Strikes New Hampshire Ballot Selfie Ban

Saturday, October 01, 2016
Photo illustration: Steve Straehley/AllGov

By Rose Bouboushian, Courthouse News Service

The U.S Court of Appeals for the First Circuit shot down a New Hampshire law banning voters from taking selfies with their ballots, finding its limits on free speech worse than the photos’ vote-buying potential.

New Hampshire prohibited citizens from photographing and publicizing their marked ballots in 2014, by amending a statute intended to block vote-buying and voter intimidation.

Anyone who posted a ballot selfie — regardless of whether it showed the voter — was subject to a fine up to $1,000 under the statute.

Three New Hampshire citizens being investigated for violating the new law challenged its constitutionality in federal court.

The court ruled in their favor last year, holding that the statute is a content-based restriction of speech in violation of the First Amendment.

New Hampshire Secretary of State Bill Gardner appealed, but the First Circuit sided with the lower court Wednesday.

“New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger,” Judge Sandra Lynch wrote (pdf) for the three-judge panel. “We repeat the old adage: ‘a picture is worth a thousand words.’“

The amended statute fails to meet the test for intermediate scrutiny under the First Amendment, according to the ruling.

“Secretary Gardner highlights scattered examples of cases involving vote-buying from other American jurisdictions,” Lynch wrote. “But Secretary Gardner admits that ‘there is no evidence that digital photography [of a ballot shared with others by a voter] played a[ny] role in any of the examples’ he cites. A few recent instances of vote-buying in other states do not substantiate New Hampshire’s asserted interest in targeting vote-buying through banning the publication of ballot selfies.” (Brackets in original).

The statute’s purposes cannot justify the restrictions it imposes on speech, the First Circuit ruled.

“The prohibition on ballot selfies reaches and curtails the speech rights of all voters, not just those motivated to cast a particular vote for illegal reasons,” Lynch wrote. “New Hampshire does so in the name of trying to prevent a much smaller hypothetical pool of voters who, New Hampshire fears, may try to sell their votes. New Hampshire admits that no such vote-selling market has in fact emerged. And to the extent that the state hypothesizes this will make intimidation of some voters more likely, that is no reason to infringe on the rights of all voters.”

The judge later added that the statute “reaches and prohibits innocent political speech by voters unconnected to the state’s interest in avoiding vote buying or voter intimidation. The plaintiffs’ examples show plainly that Sec. 659:35, I ‘burden[s] substantially more speech than is necessary to further the government’s legitimate interests.’ Indeed, several states have now expressly authorized ballot selfies, and those states have not reported an uptick in vote buying or voter intimidation.”

One of the plaintiffs’ attorneys, Gilles Bissonnette, legal director of the ACLU of New Hampshire, said in statement on the group’s website that the First Circuit ruling is “a victory for the First Amendment.”

Amicus curiae Snapchat Inc.’s general counsel, Chris Handman with Hogan Lovells in Washington, D.C., agreed, calling the ruling “a victory for free speech in the digital age.”

“We’re thrilled the court recognized that ballot selfies are an important way for Americans – especially younger Americans – to participate in the political process,” Handman added.

An Indiana judge issued a similar ruling last year, enjoining her state’s ballot-selfie ban. A Michigan voter filed a similar lawsuit in federal court earlier this month.


To Learn More:

Michigan Voter Fined, Loses Voting Right and May Face Prison Time for “Ballot Selfie” (by Lorraine Bailey, Courthouse News Service)

Death by Selfie…the Numbers are Rising (by Danny Biederman, AllGov)

Outlawing of “Ballot Selfies” Hits the Courts (by Noel Brinkerhoff, AllGov)


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