Live free and take photos: the 'ballot selfie' approved for N.H.

Voters in New Hampshire can share photos of their ballots in this year’s general election, thanks to a federal appeals court ruling many are heralding as a victory for free speech.

The First US Circuit Court of Appeals in Boston struck down a 2014 New Hampshire law that prohibited voters from snapping "selfies" with, or photos of, their completed ballots. The court ruled Wednesday that the ban did not serve a compelling state interest to guard against voter fraud and instead interfered with voters’ First Amendment rights.

Technology, particularly social media, has shifted the ways in which Americans communicate with one another drastically over the past decade. While photographing a ballot may have once seemed an odd thing to do, and could have been a potential indicator of voter bribery or coercion, the process of sharing photos of daily life in real time has become second nature to many, with platforms like Snapchat, Instagram, Facebook, and Twitter encouraging people to share photos in ways a previous generation would never have imagined.

But as such services have opened the door to new trends in communication, they’ve also provided avenues for some to carry out criminal activity. In some instances, legislators and courts have had to grapple with the ways in which these sites are used both as forums of protected free speech and for potentially harmful activity.

Reconciling modern technology with laws written more than 200 years ago sometimes proves problematic.

“We need to make sure that the First Amendment is meaningful in the 21st century as new forms of communication are created,” says Gilles Bissonnette, the legal director of the American Civil Liberties Union (ACLU) of New Hampshire, in an interview with The Christian Science Monitor.

“When a state tries to update an old law to deal with new forms of criminal behavior, it needs to do so in a way that’s tailored and respects free speech,” he says.

That will mean creating pinpointed, rather than blanketed, adjustments to current laws, Mr. Bissonnette says – something the court ruled New Hampshire failed to do with its ballot photography ban. 

New Hampshire has had a law on the books since 1979 that bars voters from disclosing who they intend to vote for by showing their ballot to another. The law intended to make it harder for vote-buying to occur, and two years ago, state legislators approved an amendment they believed would help to prohibit that same voter fraud in the digital age. 

“This prohibition shall include 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 amendment stated. Penalties would result in a $1,000 fine.

But several people, including New Hampshire state Rep. Leon Rideout, saw a ballot photo as a way to show their patriotism or support of a specific candidate, sharing their views with others in their social media networks through a photograph. They were contacted by the state’s Attorney General’s office, and an investigation was opened.

A US District Court first ruled the law unconstitutional over the summer. On Wednesday, the appeals court upheld that ruling.

“New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger,” Judge Sandra Lynch wrote in the appeals court’s decision. “We repeat the old adage: ‘a picture is worth a thousand words.’ ”

That appeals court ruling applies to New Hampshire, Maine, Massachusetts, Rhode Island, and Puerto Rico.

“I’m pretty disappointed. I certainly disagree with it,” New Hampshire Secretary of State William Gardner tells the Monitor, noting that people don’t need photos to engage in free speech about their vote. “They can leave the polling place and yell as loud as they want about who they’re voting for.”

He maintains that allowing photographs of ballots could lead to bribery and coercion, and that seemingly patriotic posts could be the result of outside influence in the voting booth – a tactic the founding fathers sought to prevent. 

“I would certainly want [the ruling] to be appealed,” he says.

Opponents of the law see no problem in the state legislature cracking down on voter bribery and fraud, but argue that it must be done in a way that targets that specific behavior without stepping on the rights of citizens. Maine, California, Oregon, Utah, and Arizona have all created exceptions within their laws that allow for the sharing of ballot photos, according to the ACLU.

“The problem with this law was that this wasn’t limited to criminal behavior,” Bissonnette says. “It is the speaker, and not the government, that gets to decide how messages are conveyed.”