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New Hampshire's First-in-Nation Ballot Selfies Ban Ruled Unconstitutional

A federal appeals court on Wednesday soundly struck down New Hampshire's ban on ballot selfies concluding it restricted innocent, political speech in the pursuit of what the judges called an "unsubstantiated and hypothetical danger" of vote-buying.

By Kevin Landrigan

A federal appeals court on Wednesday soundly struck down New Hampshire's ban on ballot selfies concluding it restricted innocent, political speech in the pursuit of what the judges called an "unsubstantiated and hypothetical danger" of vote-buying.

A three-judge panel unanimously concluded that the state's 2014 ban was unconstitutionally over broad.

"The ballot selfie prohibition is like burning down the house to roast the pig," wrote Judge Sandra Lynch in a 22-page decision.

The state will now weigh its options, which include appealing this case to the U.S. Supreme Court, Deputy Secretary of State David Scanlan said.

"We'll probably have a better idea later Thursday about how we proceed from here," Scanlan said.

Two years ago, New Hampshire became the first state in the nation to make it against the law for a voter to take a digital picture of a completed ballot and then post it on social media. Anyone found guilty could pay a fine of up to $1,000.

In response, lawmakers in Indiana adopted a similar provision; a federal court in that state has temporarily blocked it from being applied.

Several states, including Rhode Island and California, have since adopted laws expressly permitting this activity.

Three New Hampshire citizens under investigation for posting selfies after the 2014 primary election enlisted the American Civil Liberties Union of New Hampshire to challenge the constitutionality of the state law.

"Today's decision is a victory for the First Amendment. The First Circuit correctly recognized that political speech is essential to a functioning democracy," said Gilles Bissonnette, legal director for the NHCLU.

"First Amendment does not allow the state to, as it was doing here, broadly ban innocent political speech with the hope that such a sweeping ban will address underlying criminal conduct."

The decision made it clear lawmakers could have tailored a more-narrow ban on vote buying without creating this law that stifles political speech.

"The reality is almost always this type of display is going to be done with political speech in mind and it has nothing to do with criminal behavior," Bissonnette said.

"The court is saying it is the person who gets to decide how to communicate a message and not the state."

State Rep. Leon Rideout, R-Lancaster, was one of the three under investigation for posting his ballot to his House Facebook page.

"When you believe in the Constitution you can make a difference," Rideout posted on Facebook after the ruling. "I will continue to protect it from those that are willing to step on it."

During a recent interview, Secretary of State Bill Gardner said the selfies ban was a logical way to prevent the next wave of voter intimidation that could happen online.

"The law preserves the secrecy of the ballot and that's critical to our democracy in my view," said Gardner, the nation's longest-serving, top state election official.

"The fact is that these ballot selfies do make it easier for voters to prove how they voted and that could be used in the future as a way for one to sell their vote."

State prosectuors admitted in this case they could not cite any example of voter buying or coercion in recent history

A second voter, Andrew Langlois of Berlin, posted his ballot selfie online to protest opposition to the Republicans running for the US Senate in the 2014 primary. The selfie showed Langlois had instead voted for Akira, his recently-deceased dog.

William Christie, a lawyer with the Shaheen and Gordon law firm, served as co-counsel in challenging this law.

"There is no more potent way to communicate one's support for a candidate than to voluntarily display a photograph of one's marked ballot depicting one's vote for that candidate," Christie said in a statement.

Snapchat, Inc., the Reporters Committee for Freedom of the Press, the New England First Amendment Coalition, and the Keene Sentinel all filed briefs in support of the ACLU-NH's position that this ban is unconstitutional.

The judges said the state could have passed a law to make it a crime for someone to use a ballot selfie in order to either sell their vote or to comply with someone's attempt to coerce them into voting a certain way.

"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 Lynch concluded. "We repeat the old adage; a picture is worth a thousand words."

(c)2016 The New Hampshire Union Leader (Manchester, N.H.)

Caroline Cournoyer is GOVERNING's senior web editor.
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