By: C. Rose Moore
The State of New Hampshire filed an appeal on September 9th with U.S. Court of Appeals for the First Circuit seeking to overturn the New Hampshire District Court’s decision in Rideout v. Gardner, Opinion No. 2015-DNH-154-P. There, the court struck down RSA § 659:35, I, which prohibited voters from “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.” The plaintiffs in that case, namely a state representative, Leon Rideout, a disgruntled dog-lover, Andrew Langlois, and a patent-attorney, Brandon Ross, who posted his photo after the investigations started with the tagline “Come at me, bro,” were being prosecuted under the law.
Ross is not alone in thinking that this type of censorship is “wildly unconstitutional.” Ross expressed his opinion that “a core part of our democratic process is being able to communicate who you vote for. This is 2015 now, people interact with social media constantly.” District Court Judge Barbadoro shares that sentiment. In his analysis, Barbadoro held that the law deprives voters of one of their most powerful means of letting the world know how they voted” and was, therefore, an unconstitutional content-based restriction on protected speech.
Under this classification, the law was subject to strict scrutiny, so the state had to show that there was a compelling government interest and that the law was narrowly tailored to achieve that interest. The state argued that preventing vote buying and voter coercion were compelling interests, which is true, but Judge Barbadoro specified that “the state must demonstrate that it addresses an actual problem, by pointing to sufficient evidence in the law’s legislative history or in the record before the court.”
New Hampshire’s defense “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.” This is despite the fact that social media has been a part of our culture for at least the last decade. On the other hand, the plaintiffs produced undisputed evidence that there had been no vote buying prosecutions and no complaints of vote buying in the state for about 40 years.
The court also thought that it was “highly unlikely” that anyone involved in vote buying or coercion would “broadcast their intentions via social media given the criminal nature of the schemes.” Yet, Michael McDonald, an election law expert at the University of Florida, commented that “anyone dumb enough to try it would probably add a message: ‘I just made 20 bucks.’”
Given “the increasing political influence of corporations,” there may be understandable concern over “the prospect of a resurgence of vote-buying by powerful interests.” As Judge Barbadoro explains in his decision, however, there are already laws in placethat prohibit vote buying and voter coercion. The federal government and all fifty states have laws making those actions illegal, which Barbadoro credits for the virtual non-existence of the problem today.
Accordingly, this is not “like throwing away your umbrella in a rainstorm because you are not getting wet,” as Justice Ginsberg described eliminating the preclearance regime under the Voting Rights Act. As plaintiffs’ counsel Gilles Bissonnette, legal director of the American Civil Liberties Union of New Hampshire, argued, there is no need for additional restrictions, especially ones that are overbroad and “sweep within [their] scope protected innocent speech.” Voters were protected before “ballot selfie bans,” and until it is shown that extra protection is required, the umbrella they have now seems to be holding up just fine.
Along with the First Circuit, the U.S. District Court for the Southern District of Indiana will also be asked to address this issue. The ACLU of Indiana filed a lawsuit on August 29th requesting declaratory and injunctive relief against future enforcement of the law, but there are no named plaintiffs who have been prosecuted under it. The ACLU of Indiana is arguing associational standing, but will have to wait to see if the court reaches the merits.
If it does, it will likely be grappling with the same issues presented before the New Hampshire District Court. As Judge Barbadoro noted: “Few if any rights are more vital to a well-functioning democracy than either the right to speak out on political issues or the right to vote free from coercion and improper influence.” While he didn’t find those rights in conflict in New Hampshire, “many states have long-standing bans on photography in polling places.” The National Conference of State Legislatures has indicated that some states are “questioning whether the rise of cellphone cameras and influence of social media requires a new look at their practices.” Hopefully the lower courts will be able to provide guidance without a circuit split that requires Supreme Court intervention, though it would be interesting to know where the Justices come down on the issue of selfies.