In the age of selfies and social media sharing, a federal appeals court panel on Tuesday wondered whether there’s anything wrong with New Hampshire voters posting photos of their marked ballots online.
“What is this problem New Hampshire is facing?” Judge Sandra L. Lynch asked rhetorically during a hearing on whether the state’s ban on “ballot selfies” is legal.
The three judges of the regional appeals court panel heard the case of Leon Rideout et al. v. William M. Gardner, New Hampshire’s secretary of state — a case that sought to strike down a New Hampshire state law that made it a crime for a voter to share a picture of a marked ballot on the Internet. A lower court struck down the law in August 2015, but the state appealed.
The appeals judges on Tuesday questioned whether the state had gone too far in criminalizing the intentions of anyone who posts ballot selfies for reasons as innocent as making a political statement.
“Suppose the voter does not want it to be a secret, suppose the voter wants to make a political expression. . . . What justification does the state have in banning that?” asked Lynch of the US Court of Appeals for the First Circuit in Boston.
The ban was passed in 2014 as an amendment to an existing law that bars voters from showing a completed ballot to someone else before submitting it at the polls. The law was meant to prevent vote-buying, in which voters show their completed ballot for a payoff.
The law is believed to be the first of its kind, and banned voters from posting an election booth photo online regardless of how much time passed since the election. Once the ban was enacted in 2014, state officials opened investigations into at least four people who had taken pictures of their ballots and posted them online, and sought a criminal complaint against one of them, Leon Rideout, who became the lead plaintiff in the challenge to the law.
The state has been prohibited from enforcing the law until the appeal is resolved. The state Legislature in Indiana passed a similar law, though it has suspended enforcement pending litigation in that state.
The New Hampshire case is being heard in Boston because the regional federal appeals court in Boston hears cases from lower courts in Rhode Island, Massachusetts, Maine, New Hampshire, and the district of Puerto Rico. The appeals court typically takes several months to issue a decision.
Steve LaBonte, a New Hampshire assistant attorney general, argued before the court Tuesday that the ballot selfie law was meant to modernize a justifiable ban intended to curb vote buying and coercion.
“With this technology, there is an ability to take the world into the voting booth with you,” LaBonte argued.
However, the three judges did not seem to think there was anything wrong with that.
When questioned by Lynch, LaBonte acknowledged that the state could not name anyone in recent time who has been charged with coercion, though he said it was a scourge in the late 1800s. LaBonte argued that the “reasonable infringements” on free speech are justified to prevent voter coercion from again becoming a problem, and he argued that the lack of arrests means the law is working.
“We want to make sure everyone can cast their ballot free from intimidation,” LaBonte said.
Judge O. Rogeriee Thompson suggested the state could rely on existing laws that prevent people from seeking to buy votes, but LaBonte argued that no such laws prevent people from trying to sell them.
Gilles Bissonnette, a lawyer with the American Civil Liberties Union, which is representing the three plaintiffs, argued that the law is too broad, in that it criminalizes the actions of everyone who takes a picture and posts it, regardless of their intentions. He said the state has failed to tailor the law specifically to those who intend to sell their votes.
“There is no dispute that the [plaintiffs] were engaged in political expression that has nothing to do with vote buying and voter coercion,” he said.
After the hearing he said: “They took a sledgehammer to an issue where they probably should have used a scalpel.”