Ban On Selfies In The Voting Booth Is Unconstitutional

Image courtesy of Scott Lynch

With a little more than a month to go before Election Day, we finally have some clarity on that age-old legal question: Am I allowed to take a selfie in the voting booth?

Yesterday, a federal appeals court ruled that a New Hampshire law that bans photos in the voting booth violates voters’ First Amendment rights.

The state law states that “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.” In 2014, the text of the legislation was amended to 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.”

Violating this law didn’t just earn you a minute in timeout corner, but could result in a fine of up to $1,000 for the selfie-snapper.

A trio of New Hampshire residents — one of them a state legislator — who were investigated for violating this law sued New Hampshire Secretary of State William Gardner. In Aug. 2015, a U.S. District Court judge granted the voters summary judgment [PDF], concluding that the ban on selfies was an unconstitutional content-based restriction on speech that does not further a compelling government interest.

However, the judge did not issue an injunction barring the law’s enforcement because “I have no reason to believe that the Secretary will fail to respect this Court’s ruling that the new law is unconstitutional on its face.”

The judge was mistaken. The state determined that a ban on selfies is apparently something worth spending taxpayer money protecting, and appealed this ruling to the First Circuit Court of Appeals. Once again, the state came up short.

Yesterday, a First Circuit panel affirmed [PDF] the lower court’s decision, saying that “there is a substantial mismatch between New Hampshire’s objectives and the ballot-selfie prohibition.”

The panel notes that Secretary Gardner “essentially concedes that section [this law] does not respond to a present ‘actual problem’ in need of solving,” but that it is intended as a preemptive measure to “preserve the secrecy of the ballot.” The state argued that by letting the world know their vote on social media, selfie-takers could be aiding future vote-buying and voter coercion schemes.

The appeals court was unconvinced, saying that a content-based restriction of speech can’t rely on such a flimsy foundation.

“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,” explained the judges, who note that the state could not identify a single instance of vote-buying or intimidation resulting from a voter posting a photo on social media.

“Indeed, Secretary Gardner has admitted that New Hampshire has not received any complaints of vote buying or voter intimidation since at least 1976,” adds the court, “nor has he pointed to any such incidents since the nineteenth century.”

The state tried to liken the selfie ban to previously upheld restrictions on campaigning near polling places, but the appeals court says that the “intrusion on the voters’ First Amendment rights is much greater here” because the selfie ban isn’t about securing the physical space of a polling site, but “instead controls the use of imagery of marked ballots, regardless of where, when, and how that imagery is publicized.”

Even if the state had shown that there was a genuine need to restrict these photos, the court says New Hampshire failed to tailor the law narrowly enough to survive scrutiny.

“First, 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,” explains the court, noting that the extent to which the state believes these photos might increase voter intimidation is so small that it “is no reason to infringe on the rights of all voters.”

“Second, the State has not demonstrated that other state and federal laws prohibiting vote corruption are not already adequate to the justifications it has identified,” adds the court. “New Hampshire suggests that it has no criminal statute preventing a voter from selling votes. That can be easily remedied without the far reach of this statute. The State may outlaw coercion or the buying or selling of votes without the need for this prohibition.”

Concludes the court: “New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger.”

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