The Law and Business of Social Media
September 08, 2015 - First Amendment, Litigation

Federal District Court Strikes Down Law That Bans Ballot Selfies

Federal District Court Strikes Down Law That Bans Ballot Selfies

The U.S. District Court for the District of New Hampshire recently struck down on First Amendment grounds a 2014 amendment to New Hampshire Revised Statute 659:35 that made it illegal for New Hampshire voters to post pictures of their completed ballots to social media. While several states have laws that disallow ballot sharing, RSA 659:35 was the first “to explicitly ban voters from sharing their marked ballots on social media.”

The case, Rideout v. Gardner, was filed by the New Hampshire Civil Liberties Union on behalf of three voters who were being investigated by the New Hampshire Attorney General’s Office for violating the law banning ballot selfies during the September 2014 Republican primary elections.

The court first determined that RSA 659:35 was a content-based restriction on speech because it necessarily required regulators to “examine the content of the speech to determine whether it includes impermissible subject matter”—i.e., photographs of completed ballots.

The court then held that the statute could not meet the strict scrutiny standard that applies to content-based speech, “which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.”

Paraphrasing a 2011 Supreme Court case, the Rideout court noted that, “[f]or an interest to be sufficiently compelling, the state must demonstrate that it addresses an actual problem.” The state had argued that the law was needed to prevent vote buying and voter intimidation, but the court was not convinced. In fact, the plaintiffs had produced evidence that vote buying had not been the subject of a single prosecution or complaint in New Hampshire since 1976.

The court also noted that the state had “failed to identify a single instance anywhere in the United States in which a credible claim has been made that digital or photographic images of completed ballots have been used to facilitate vote buying or voter coercion.”

Finally the court held that the law was not sufficiently narrowly tailored, because the “few who might be drawn into efforts to buy or coerce their votes are highly unlikely to broadcast their intentions via social media.” Thus, investigations for violation of RSA 659:35 “will naturally tend to focus on the low-hanging fruit of innocent voters who simply want the world to know how they have voted for entirely legitimate reasons” and will likely “punish only the innocent while leaving actual participants in vote buying and voter coercion schemes unscathed.”

Moreover, the state had an obvious, less-restrictive alternative: “[I]t can simply make it unlawful to use an image of a completed ballot in connection with vote buying and voter coercion schemes.”