Concord
The three judges from the U.S. 1st Circuit Court of Appeals in Boston unanimously upheld a lower court ruling that had struck down the state ban. Wednesday’s 22-page ruling agreed that the New Hampshire law was a “content-based restriction on speech” and thus unconstitutional.
“New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger. We repeat the old adage: A picture is worth a thousand words,” the ruling said.
The ruling was particularly harsh on the inability of New Hampshire lawmakers to point to any harm done by ballot selfies, despite the state’s concern that they facilitate vote buying or vote coercion, because they allow people to prove how they cast their ballot.
“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. As the plaintiffs note, ‘small cameras’ and digital photography ‘have been in use for at least 15 years,’ and New Hampshire cannot identify a single complaint of vote buying or intimidation related to a voter’s publishing a photograph of a marked ballot during that period,” the ruling reads.
“Indeed, Secretary (of State William) Gardner has admitted that New Hampshire has not received any complaints of vote buying or voter intimidation since at least 1976, nor has he pointed to any such incidents since the nineteenth century.”
“A ban on ballot selfies would suppress a large swath of political speech,” the ruling said.
It is not known whether New Hampshire plans to appeal the decision to the U.S. Supreme Court.
The ballot selfie law came out of existing state laws dating back to the 1970s, which forbade voters from showing their completed ballot to another person “with the intention of letting it be known how he is about to vote.”