By Sarah Graffam

In a recent lawsuit, the New Hampshire Civil Liberties Union challenged a law that prohibits the posting of photos of marked ballots on social media. The NHCLU states, “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.” NH RSA 659:35(I) bans a person from displaying a photograph of a market ballot, including on the internet through social media platforms like Twitter, Facebook, and Instagram. A willful violation of this statute may be punishable by a fine up to $1,000.

House Bill 366, which took effect September 1, 2014, was meant to update a century-old law against vote rigging.  According to Deputy Secretary of State David Scanlan, the original law dates back to the 1880s when vote-buying was rampant and votes were bought with money, liquor, and other enticements. According to Scanlan, digital technology is opening the door again for vote buying and voter coercion, and HB 366 attempts to ensure that door remains shut.

The NHCLU alleges the changes instituted by HB 366 violate the First Amendment by restraining freedom of speech. It argues the law bans pure political speech on matters of public concern beyond the polling place and that the ban is not remotely related to the State’s purpose of addressing vote-buying and voter coercion. The NHCLU states that although the State has not cited a single incident of vote-buying since the 1890s, the State may address any concerns through a more tailored approach by investigating and prosecuting vote-buying transactions and voter coercion, which are already illegal under RSA 659:40(I-II). The lawsuit also emphasizes the idea that displaying a photograph of a marked ballot on the internet is a powerful form of political speech, which conveys a number of constitutionally-protected messages that have no relationship to vote-buying or coercion. This form of speech can convey a sense of pride from an 18-year-old enthusiastic about voting in his first presidential election, to the frustration plaintiff Andrew Langlois said he felt when he wrote in his deceased dog for his choice of Senate candidate and posted a photo of his ballot.

At the time of the lawsuit, three people were under investigation by the New Hampshire Attorney General’s Office for violating this provision, arising from the September 9, 2014 primary elections. Unlike Langlois who did not know posting the photo was illegal, the other two plaintiffs, who were running as Republican state representatives, posted their photos with the intent of protesting the current law. After the November 4th  election, local news reported additional instances of deliberate violations of the new law as civil disobedience. Immediately following this election, the Attorney General’s Office stated it received no complaints of any additional violations. The absence of additional investigations questions whether the Attorney General will “aggressively enforce” the law as the NHCLU claims or if it will be essentially unenforceable like other ballot privacy laws.

It should be noted that laws prohibiting the taking of photos or film of a marked ballot are not uncommon. According to the Digital Media Law Project, at least two-thirds of states prohibit such acts. If the New Hampshire statute were to be found invalid, it may cast doubt on the constitutionality of such similar laws.

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