{"id":4599,"date":"2016-09-19T11:29:13","date_gmt":"2016-09-19T15:29:13","guid":{"rendered":"http:\/\/ncjolt.org\/?p=4599"},"modified":"2020-06-04T20:53:00","modified_gmt":"2020-06-04T20:53:00","slug":"nh-voting-booth-selfie-ban","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/nh-voting-booth-selfie-ban\/","title":{"rendered":"Pics or It Didn\u2019t Happen: First Circuit Hears Appeal to Revive NH Voting Booth Selfie Ban"},"content":{"rendered":"

With the largest state legislature<\/a><\/span> in the country, national media coverage of the state\u2019s presidential primary<\/a><\/span>, and an electorate that has sided with the winner in eight of the last ten<\/a><\/span> elections, citizens of New Hampshire take great pride in their influence on the political process. When your state motto is \u201cLive Free or Die,\u201d 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<\/a><\/span> 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.
\nThe statute read:\u00a0No voter shall allow his or her<\/em> ballot to be seen by any person with the intention of letting it be known how he or she<\/em> is about to vote or how he or she has voted<\/em> except as provided in RSA 659:20.1<\/sup> 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.<\/em><\/a><\/span>
\nNot 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\u2019s interest in preventing vote buying or voter coercion was insufficiently compelling<\/a><\/span> to overcome the people\u2019s interest in political expression. Moreover, punishing individuals not involved in vote buying schemes made the law overinclusive<\/a><\/span> and thus not narrowly tailored to fit the government\u2019s already questionable goal.
\nWhy 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<\/a><\/span> and thus should not have received strict scrutiny. The parties argued in front of the First Circuit panel on September 13, 2016<\/a><\/span>, ironically the same day as New Hampshire\u2019s state primary<\/a><\/span>. With the general election looming in November, and roughly forty-four percent<\/a><\/span> 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.
\nAssociate attorney general Stephen LaBonte, arguing for Gardner, reiterated the state\u2019s concern that vote buying and voter coercion must be prevented<\/a><\/span>. 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<\/a><\/span>. However, the First Circuit panel saw no new evidence<\/a><\/span> of any vote buying conspiracies.
\nSpeaking of deep pockets, $20-billion-valued social media giant Snapchat entered the ring<\/a><\/span> in April of 2016 behind the American Civil Liberties Union to oppose the law.<\/p>\n

Snapchat\u2019s attorneys filed an amicus brief<\/a> arguing that \u201cballot selfies and similar digital information-sharing are important ways that younger voters participate in the political process and make their voices heard.\u201d<\/p><\/blockquote>\n

 
\nA 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, \u201c[t]hat system can be used to intimidate, and purchase votes.\u201d<\/a><\/span> Circuit Judge Kermit Lipez quickly responded, \u201cYou have no evidence of that. None.\u201d<\/a><\/span>
\nWhile 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 \u201cLive\u201d 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\u2019s laws before you show the world your ballot.<\/p>\n","protected":false},"excerpt":{"rendered":"

With the largest state legislature in the country, national media coverage of the state\u2019s 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 \u201cLive Free or Die,\u201d …<\/a><\/p>\n","protected":false},"author":1,"featured_media":4600,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/4599"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=4599"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/4599\/revisions"}],"predecessor-version":[{"id":7186,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/4599\/revisions\/7186"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media\/4600"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=4599"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=4599"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=4599"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}