The recent primary election in Manchester, New Hampshire, offered voters there a chance to celebrate their newly recognized liberty: the constitutional right to a ballot selfie.
That’s a right the New Hampshire Legislature attempted to curtail last year, passing a law that prohibited 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.” The Legislature attached a $1,000 fine to the violation.
The law was in effect in time for voting in 2014, and the state attorney general’s office started investigating a handful of voters who posted photos of their marked ballots to Facebook and Twitter during that election cycle.
Three of them became plaintiffs in a lawsuit challenging the restriction. And U.S. District Court Judge Paul Barbadoro last month agreed with them, striking down the law. Essentially, the judge reasoned, if the state is going to impose a restriction on speech, it has to have a compelling reason to do so. New Hampshire didn’t have one, Barbadoro found.
“At its core, this dispute turns on a claim that the political speech rights of voters must be curtailed to protect the vote against those who would corrupt it with cash and coercion,” Barbadoro wrote in his Aug. 11 opinion. “If this claim could be grounded in something other than speculation, it would be more difficult to resolve.”
One shouldn’t read Barbadoro’s ruling to apply to legal issues besides ballot selfies. But the federal judge offers a useful template to apply to changes to laws governing the right to vote: Don’t introduce such changes, particularly restrictions, based on speculation.
Throughout debate in the New Hampshire legislature and in court arguments, the ballot selfie ban’s defenders argued that they were protecting the integrity of the vote, guarding against coercion and vote-buying schemes that could exploit social media postings of marked ballots.
The problem is, there’s no evidence that vote-buying is occurring in New Hampshire, much less vote-buying in which voters post photos of their completed ballots to social media in order to prove they voted as ordered.
“Here, the secretary [of state] offers only anecdote and speculation to sustain the law, which is insufficient when it is applied to a content-based restriction on speech,” Barbadoro wrote.
The U.S. in recent years has seen a wave of laws introducing photo ID requirements for voters in the name of preventing voter fraud. The problem is, there’s little documented voter fraud in U.S. elections — and even less of the type voter ID laws would supposedly prevent: voter impersonation.
Justin Levitt, a professor at Loyola Law School in Los Angeles, documented every credible allegation of voter impersonation between 2000 and early 2014. His conclusion? Out of the more than 1 billion ballots cast in that period in primary and general elections, there were 31 credible allegations — not even instances of proven fraud — of someone voting under another’s name. That’s less than 0.0000031 percent of the time — and some could have been clerical errors.
At the same time, there’s credible reason to think such requirements suppress voter turnout. In Kansas and Tennessee, for example, a Government Accountability Office review released last year found photo ID requirements were responsible for statistically significant drops in voter turnout between 2008, when no photo ID requirement was in place, and 2012, after the requirements had taken effect. Based on the Government Accountability Office review, the Washington Post calculated that 122,000 fewer voters turned out to cast ballots in those states in 2012 than in 2008.
Given ample reason to suspect a photo ID requirement places a burden on certain voters in exercising a foundational right — especially the 5 to 16 percent of voters nationwide the Government Accountability Office has estimated do not have the requisite IDs — a state would need a clear and compelling reason to impose such a requirement.
So far, there’s no compelling reason to require voters show photo IDs, much as there was never any compelling reason to ban selfies from the voting booth.
