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A three-judge panel from the First Circuit Court of Appeals has ruled unanimously that a New Hampshire ban on ballot selfies is unconstitutional. The state passed the law under the belief that voter intimidation and vote buying could be made easier if people have a way of proving who they voted for. Under the law, anyone who snapped a photo of their ballot and shared it on social media could be fined up to $1000. However, the court found the law to be a violation of the First Amendment.

The ruling states that any restrictions on speech must be “narrowly tailored to serve a significant governmental interest.” New Hampshire was unable to provide evidence of a single case of a ballot photo being used in a case of voter intimidation or vote buying, and couldn’t even present a single complaint of either occurring more recently than 1976. For this reason, the court does not believe their is a significant government interest served by this law.

However, even if it was accepted that vote buying is a serious problem, the court still finds that the law is not narrowly tailored to address that issue. It gives two reasons to support that conclusion. First, because the law restricts the speech of all voters and not only those who are paid or intimidated into voting a certain way. It states, “The restriction affects voters who are engaged in core political speech, an area highly protected by the First Amendment.” It goes on to say that the law “prohibits innocent political speech by voters unconnected to the State’s interest in avoiding vote buying or voter intimidation.”

The second reason that the law is not narrow enough is that another law could be passed to deal with the problem without restricting speech. The ruling states, “New Hampshire suggests that it has no criminal statute preventing a voter from selling votes. That can be easily remedied without the far reach of this statute. The State may outlaw coercion or the buying or selling of votes without the need for this prohibition.”

William Christie, a co-counsel on the case, issued a statement saying, “Voting is an act of extraordinary importance, and it is because of this importance that the First Amendment also ensures that citizens are free to communicate their experiences at the polls, including the people for whom they voted if they so wish. As the Court recognized, 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.”

Besides New Hampshire, 26 other states have bans on ballot selfies, and in several more the law is unclear. The First Circuit’s ruling is only binding in a few northeastern states, so laws restricting ballot selfies may continue to exist. However, this ruling may be persuasive to judges in other parts of the country.

Should ballot selfies be banned or are they important political speech? Leave your comments below.

Max Michael

Senior Writer

I’m a technology reporter located near the Innovation District of Kitchener-Waterloo, Ontario.