U.S. Court Of Appeals Upholds Ruling That New Hampshire's Silly Ballot Selfie Ban Violated The First Amendment

from the silence-citizens! dept

You may recall that roughly a year ago, a federal judge struck down a New Hampshire law that made "ballot selfies" illegal. The state had essentially updated its laws revolving around limiting the ability to sell votes or influence the public through depicting who a person voted for to include criminalizing anyone that took a picture of their completed ballot and shared it on social media. The state had said that allowing that sort of thing encouraged voter corruption, with the idea that ballot selfies would be used as a form of proof that a bought vote had been completed, or might otherwise be used to influence other members of the public as to how to vote. It was a strange theory, given how unlikely it would be for a corrupted voter to post evidence of his or her corruption on Facebook, not to mention that stating that a person essentially couldn't engage in a form of political speech via a picture was flatly unconstitutional. The federal judge agreed.

But, for reasons I cannot begin to fathom, New Hampshire appealed this ruling. And so it went before the U.S. Court of Appeals for the 1st Circuit... which found the law to be flatly unconstitutional as well.

The court held this statute violated the First Amendment; whether or not it’s viewed as content-based (and I think it should be), the statute is unconstitutional because it fails even the “intermediate scrutiny” applied to content-neutral speech restrictions.

From the ruling itself:

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...But even accepting the possibility that ballot selfies will make vote buying and voter coercion easier by providing proof of how the voter actually voted, the statute still fails for lack of narrow tailoring.

The ruling goes on to detail the two reasons. First, the court points out that none of the fears the state raises as its reasons for enacting this law have been realized and that curtailing the free speech rights on an entire population over a theoretical problem ain't a thing that the state can do. Second, should those fears actually come to reality, the court points out that there are already laws on the books to address them and, again, limiting free speech rights on an entire population when that's the case isn't going to fly.

The point is that political speech is about as sacred a thing as a secular republic like ours has. That New Hampshire is going to such lengths to keep people from being able to proudly show that they voted, and who they voted for, seems strange for a state with a motto of "Live free or die."

Filed Under: ballot selfies, first amendment, free speech, new hampshire


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  • icon
    rw (profile), 30 Sep 2016 @ 7:43am

    Besides, why buy individual voters when it would be cheaper and easier to just buy those counting the ballots.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Sep 2016 @ 8:51am

      Re:

      Why buy the votes when you can buy whoever gets elected?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 Sep 2016 @ 8:59am

        Re: Re:

        huh?

        why buy fucking anything?

        why not just setup a fucking party, solicit money from the fucking tards, call them a member, fuck them over, and simultaneous gain their adoration? This way you don't have to buy the elected official when you already OWN THEM!

        The American Citizens are literally paying a Devil to run a Devil as a candidate to defeat another Devil! It's fucking insane! Win, Win, Win!

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Sep 2016 @ 8:56am

      Re:

      Why buy the votes when you can hack the electronic voting machines?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Sep 2016 @ 9:09am

    As much as I love living in New Hampshire, I have to admit that we have the absolutely dumbest legislature in the country. Anything I see the words "New Hampshire State Representative" in a news story I cringe. The problem is that despite our rather small population, we insist on having a legislature that rivals the size of California's. So you need like 3 people to vote for you in order to be elected.

    reply to this | link to this | view in chronology ]

    • identicon
      Michael, 30 Sep 2016 @ 10:04am

      Re:

      we have the absolutely dumbest legislature in the country

      Please don't make statements like this. My state is likely to take it as a challenge.

      reply to this | link to this | view in chronology ]

    • icon
      R.H. (profile), 30 Sep 2016 @ 11:03am

      Re:

      400 members‽ Your state has about 3000 people per representative. Mine (Michigan) has about 90,000. That's either a very responsive government or a horrible one that doesn't get anything useful done due to pandering to the electorate.

      Sometimes, though, I wonder what would happen if our federal House of Representatives was a bit larger and more granular. Even the United Kingdom has a 650 member House of Commons for 64 million residents compared to our 435 for 324 million people.

      reply to this | link to this | view in chronology ]

    • icon
      DannyB (profile), 30 Sep 2016 @ 11:14am

      Re:

      I am in Kansas and strongly disagree with your assertion to claim the dumbest legislature.

      reply to this | link to this | view in chronology ]

  • icon
    TheResidentSkeptic (profile), 30 Sep 2016 @ 9:11am

    It has to be illegal

    If everyone publishes their actual vote, then how can we declare the winner to be the one we were paid to announce as the winner?

    We can't be held accountable by the public!

    reply to this | link to this | view in chronology ]

    • icon
      DannyB (profile), 30 Sep 2016 @ 11:21am

      Re: It has to be illegal

      Ballot selfies can be fake.

      1. Get ballot
      2. Mark it for the selfie
      3. Take selfie picture
      4. Tear ballot and return it to election judge for a new ballot. If asked, explanation is that you had mis-marked your ballot and require a new one.
      5. Mark ballot how you actually want it
      6. Take _another_ selfie with correct ballot

      Now if you were being paided to vote a certain way:
      7. Profit

      Or if paid or blackmailed to vote a certain way, and you were being watched, you could explain that the first time, you forgot, and marked the ballot the wrong way (selfie to prove it), then tore that one up, and voted the way the blackmailer or payer desired (selfie to prove it). [Just be sure there is no way to tell which selfie was taken first, such as on your camera, phone, etc. You emailed the selfie to the blackmailer, then deleted from camera to leave no evidence other than the email.]

      Or if it comes to "we're going to track down and lynch everyone who voted for X", you have a selfie to prove you voted for the *other* evil candidate -- no matter what the election outcome.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 Sep 2016 @ 11:38am

        Re: Re: It has to be illegal

        Why take two selfies, unless being paid twice?

        reply to this | link to this | view in chronology ]

        • icon
          DannyB (profile), 30 Sep 2016 @ 12:55pm

          Re: Re: Re: It has to be illegal

          If you're being blackmailed, then DON'T take two selfies.

          In the lynching situation, two selfies could be your friend.

          "Oh, see, I have a selfie of me voting for ${ trump | hillary }. So I'm not one of the voters you want to lynch."

          You make a good point about getting paid twice. In fact, maybe more than twice. You can get paid by anyone wanting to pay for a vote since you have a selfie of both.

          Of course, results of election are known by election night after the news media delays announcing the result so as not to spoil the actual, already determined result for people in far west time zones.

          reply to this | link to this | view in chronology ]

        • icon
          DannyB (profile), 30 Sep 2016 @ 12:56pm

          Re: Re: Re: It has to be illegal

          Another thing I would mention, this conversation really shows how much dignity and respect our democratic election process has.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Sep 2016 @ 9:24am

    Well

    given how unlikely it would be for a corrupted voter to post evidence of his or her corruption on Facebook

    This very website has a (somewhat) regular feature of criminals outing themselves and their crimes on Facebook, does it not?

    To be clear, I think the law was dumbballs and I'm glad it was struck down. But please don't overestimate the IQ of the average Facebook poster.

    reply to this | link to this | view in chronology ]

    • icon
      R.H. (profile), 30 Sep 2016 @ 11:13am

      Re: Well

      My state has a similar law but, rather than criminalizing the person, it invalidates the ballot itself. I wonder if the state of New Hampshire will be nice enough to attempt another appeal before November to get this settled one way or another.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Sep 2016 @ 9:55am

    Sorry but you're wrong. It should always be illegal to prove how you voted.

    reply to this | link to this | view in chronology ]

    • icon
      BentFranklin (profile), 30 Sep 2016 @ 10:21am

      Re:

      If someone wants to prove that they voted, great they have their stubs. Take a picture of that. If someone can prove how they voted, then some will be forced to do so, by abusive spouses or employers. Failure to vote the right way, or even to take your selfie, will grounds for a beating or dismissal.

      New Hampshire isn't the only state to have that law. I believe it's the law in every state. TechDirt needs to do some more reading on elections before it spreads disinformation like this.

      [Dsiclosure: I was the AC I'm replying to.]

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 Sep 2016 @ 3:51pm

        Re: Re:

        If you do not want "abusive spouses or employers" doing evil things, go after the abusive spouses or employers. Victim blaming, and legislating against behavior by potential victims, is not the solution. Next, you will claim that all women should wear burquas, because otherwise men might rape them.

        reply to this | link to this | view in chronology ]

      • identicon
        Thad, 30 Sep 2016 @ 4:51pm

        Re: Re:

        If someone can prove how they voted, then some will be forced to do so, by abusive spouses or employers.

        [citation needed]

        reply to this | link to this | view in chronology ]

    • icon
      Mattheus (profile), 30 Sep 2016 @ 11:58am

      Re:

      Why should it "always be illegal?"

      Do you support armed men arresting someone for publicizing their political choice?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 1 Oct 2016 @ 3:54pm

        Re: Re:

        Do you support armed men arresting someone for publicizing their political choice?

        Only if it was the wrong choice.

        reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 30 Sep 2016 @ 9:57am

    Ah the wonders of democracy. Voting is mandatory here and you will spend some jail time if you take a selfie at the ballot. How democratic. I wonder if NH took example from us?

    reply to this | link to this | view in chronology ]

  • identicon
    Hrrmph, 30 Sep 2016 @ 11:00am

    Coercion, what's that?

    Voter coercion and bribery are real problems, and ballot photos are being used for these purposes. In fact, it's reported to be common in Russia.

    Headline of this article notwithstanding, it's not a prohibition on selfies. It's a prohibition on ballot photos. Content of the article notwithstanding, lots of states prohibit photos of filled out ballots from being sent. Okay, it won't prevent all kinds of corruption and sometimes it will limit political speech. It's only because our political speech is so vapid that anyone could say this is a very significant restriction on political speech -- the law permits you to post any information about how you voted other than a picture of your ballot.

    This posting totally overstates the case for the law not being constitutional and fails to acknowledge that the law addresses a real problem. I think it undermines the credibility of Tech Dirt, one of our best voices for civil liberties. For what it's worth, I think this blog has been trending toward blowhardedness in a very unfortunate way because most of what it says is right and would be much more effective if it weren't so overstated. But as Fox News and so many other outlets have shown, preachin' to the choir is popular and also effective in its way, which is why I don't expect anything different from my friends at Tech Dirt.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Sep 2016 @ 1:45pm

      Re: Coercion, what's that?

      Voter coercion and bribery are real problems, and ballot photos are being used for these purposes. In fact, it's reported to be common in Russia.

      Nuh-uh!

      "...the court points out that none of the fears the state raises as its reasons for enacting this law have been realized."

      So there. The court says that's not true!

      reply to this | link to this | view in chronology ]

    • identicon
      Thad, 30 Sep 2016 @ 5:00pm

      Re: Coercion, what's that?

      Voter coercion and bribery are real problems

      No, they're not.
      and ballot photos are being used for these purposes.

      No, they're not.
      In fact, it's reported to be common in Russia.

      1. "Reported" by whom?
      2. Even if this were true, what bearing would it have on the US?
      Okay, it won't prevent all kinds of corruption and sometimes it will limit political speech. It's only because our political speech is so vapid that anyone could say this is a very significant restriction on political speech -- the law permits you to post any information about how you voted other than a picture of your ballot.

      Ah yes, let's remember the text of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or significantly abridging the freedom of speech, unless it's vapid, and anyway, you could just express some other form of political speech instead." I definitely remember that from junior year US History class.
      But as Fox News and so many other outlets have shown, preachin' to the choir is popular and also effective in its way

      If you think voter fraud is a legitimate problem in the US, then I believe you when you say you're familiar with Fox News.

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 1 Oct 2016 @ 11:55am

        Re: Re: Coercion, what's that?

        If you think voter fraud is a legitimate problem in the US, then I believe you when you say you're familiar with Fox News.

        I think it's a legitimate problem. But not "in person" voter fraud, of the type this law and the voter ID laws are aimed at.

        reply to this | link to this | view in chronology ]

  • identicon
    I Love Capitalism, 30 Sep 2016 @ 1:39pm

    What's wrong with selling votes anyways?

    It's my vote, I can do what I want with it!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Oct 2016 @ 4:03pm

    Accountability

    How else are we going to hold people accountable for how they vote?

    reply to this | link to this | view in chronology ]


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