When Republicans and Democrats in New Hampshire cast their presidential primary votes in February, expect some to post photos with their completed ballots to Facebook and Twitter.
They’ll be celebrating a newly recognized liberty in the Granite State: the right to post a “ballot selfie.”
That’s because New Hampshire lawmakers last year attempted to take that right away, passing a law barring a voter 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.” They attached a $1,000 fine to the violation.
But a federal judge last month struck down the law.
The selfie ban’s defenders said they were attempting to protect the integrity of the secret ballot and prevent vote-buying in the age of smartphones and social media — when a voter can post a photo of his completed ballot to social media as part of a vote-buying scheme, show it as proof he voted a particular way, and cash in. But U.S. District Court Judge Paul Barbadoro wrote in an Aug. 11 opinion that “the new law is a content-based restriction on speech that cannot survive strict scrutiny because it neither actually serves compelling state interests nor is it narrowly tailored to achieve those interests.”
The problem, Barbadoro concluded, is that no one can prove vote-buying via ballot selfie is actually occurring and threatens the integrity of the vote. In order to address what amounts to a non-issue, then, New Hampshire unnecessarily imposed a restriction on First Amendment rights.
New Hampshire’s secretary of state has said he plans to appeal. This clearly isn’t the end of a debate over free speech rights, reasonable restrictions on behavior while voting and the meaning of ballot secrecy in the age of the selfie.
Leave campaigning behind
Free speech and political activities are already curtailed at polling places throughout the country. Some states don’t allow audio or video recording at polling places or cellphone use in the voting booth. On the other end of the spectrum, Arizona and Utah acted this year to explicitly allow ballot selfies.
Maine election laws don’t explicitly bar those activities. But state law does have restrictions surrounding conduct at the polling place. There’s no campaigning within 250 feet of a polling place, and a candidate can stand by the entrance but isn’t allowed to make a final pitch to voters as they enter. In addition, an election warden has the power to remove any person who’s causing a disturbance. It’s also illegal, within the polling place, for anyone to try to influence how others vote.
Privacy of the vote
Those are some of the restrictions that grew out of efforts across the country in the 1800s to put an end to blatant vote-buying, voter coercion and political parties’ close control over elections.
The voice voting of the colonial era and the earliest versions of paper balloting in the 1800s — in which voters had to supply the paper themselves — were highly susceptible to vote-buying and other forms of coercion. As Jill Lepore wrote in The New Yorker in 2008, political parties would hand voters color-coded ballots listing their own candidates (the party ticket), voters would carry them to the polls, and party bosses would observe to see if voters submitted their parties’ color-coded ballots.
The introduction of the secret ballot by the 1890s, supplied by the state, removed party bosses’ ability to track votes as part of vote-buying schemes, and it greatly reduced coercion.
“I truly believe in the secret ballot. That’s the foundation of a democracy, to make sure people aren’t coerced or fearful of casting a ballot,” said Deputy Secretary of State Julie Flynn, who oversees Maine elections. “I don’t think that’s something we should take lightly.”
To that end, there are consequences for violating the secrecy of the ballot. In Maine, it’s a Class E crime — punishable by up to six months in jail and a $1,000 fine — for an election official to intentionally disclose how someone voted to another person. Interfering with voters’ ability to vote and attempting to influence them at the polls carry the same penalty. On Election Day, election workers have to station themselves in a way that doesn’t allow them to see how voters have marked their ballots.
The end of secrecy?
As for ballot selfies, Maine doesn’t have a specific law barring them, but ballots are not public documents, and it’s a crime to make unauthorized copies of them.
On that basis, Flynn said, she would advise against ballot selfies. “If somebody said to me, ‘Is it OK to take a picture of my ballot?’ I would say, ‘No, they’re private,’” she said.
But Maine’s Legislature might have unwittingly removed the criminal restriction on ballot selfies. In 2012, the Digital Media Law Project, which tracks voting laws in every state, said on its website that a 2011 law change had made it legal for a Maine voter to disclose his or her own ballot. Last month, The New York Times reported Maine had changed its law, effectively allowing ballot selfies.
Selfies and the law
Indeed, as part of a broad-based revision of election laws passed in 2011, lawmakers changed state statute to specify it was illegal for someone “entrusted with another voter’s marked ballot” — namely, an election official — to disclose the contents of that ballot to someone else.
The change followed a 2010 incident in which, according to an attorney general’s office investigation, Bowdoinham’s town clerk mishandled absentee ballots in a special selectmen’s election, saw how a fellow town employee voted, and told the town manager how that employee voted. That employee said the disclosure led to a hostile work environment.
“We amended the law to make it clear you can’t disclose the content, whether you’re showing it or disclosing it verbally,” Flynn said. “That isn’t to do with somebody and their own ballot.”
Previously, the statute said it was a crime if a person “shows that person’s marked ballot to another with the intent to reveal how that person voted” — a statute that could be read to bar someone from showing off his or her own completed ballot.
Flynn maintains Maine law effectively bans ballot selfies because of the ban on making unauthorized ballot copies. But ballot selfies’ legality is an unsettled question. Maine election officials will examine the New Hampshire decision and await the outcome of legal action surrounding the New Hampshire law, Flynn said.
New Hampshire’s ballot selfie ban unleashed some defiance, including by the three plaintiffs who brought the case to federal court with the help of the American Civil Liberties Union of New Hampshire. The attorney general’s office started investigating voters who posted photos of their completed ballots to social media.
Such investigations and prosecution in Maine are unlikely, Flynn said.
“Tying a particular ballot to a particular voter without them disclosing it, I think that’s what we’re trying to protect with some of these things,” Flynn said. “I don’t know how that plays with people’s changing views on their own privacy and whether that’s truly political speech or not.”