By Clifton Rogers
It has become increasingly common to take a picture of a ballot and to post it on social media. This is known as a “ballot selfie.” Ballot selfies are popular among those who are enthusiastic about politics and social media.
According to critics, however, there are good reasons to ban ballot selfies. Opponents of ballot selfies theorize that being able to take pictures of ballots could make voter fraud more widespread. The theory is that because vote buyers need to be able to verify who the person they are paying voted for, a picture of the ballot is the best possible evidence. New Hampshire adopted such a view and passed Election Procedure 659:35 in the summer of 2014. The law punishes, with a $1000 fine, anyone who takes a picture of a ballot in which a selection has been made and shares it on social media. New Hampshire says it is attempting to uphold the sanctity of the secret ballot under the theory that “if a vote can not be proven, it can not be bought.”
Shortly after the New Hampshire law went into effect, a man snapped a picture of a ballot in which he voted for his deceased dog and then posted it on social media. The man did so because he was angry with the quality of the candidates on the ballot. New Hampshire investigated the man under the new anti-ballot selfie law. The ACLU then filed a case challenging the law on his and two other individual’s behalf. It argued that the law violated the First Amendment’s guarantee of free speech. The ACLU contended that posting a picture of a stamped ballot is an act of free speech, and that the government has no proof that voter fraud of this kind is a serious enough issue to warrant this restriction on citizen expression. It also claimed that the action New Hampshire took in prohibiting ballot selfies was too broad and unfairly burdened innocent voters.
The lawsuit over ballot selfies came before Judge Paul J. Barbadoro of the U.S. District Court for New Hampshire. Judge Barbadoro held that the law violated the First Amendment because New Hampshire did not have a sufficient reason for limiting this political speech.
The First Amendment states that “Congress shall make no law abridging the right of free speech.” The right covers more than mere speech; it includes actions or expression that furthers a belief. Even though the First Amendment seems to create a complete prohibition on governmental regulation, states and the federal government can pass laws restricting free speech under certain limited circumstances. According to the Supreme Court, a state may restrict certain speech if it can justify it with a compelling reason to do so and if it can prove that it has adopted the narrowest possible means to achieve its goal.
For example, in United States v. O’Brien, the Court held that a law that banned the burning of draft cards was constitutional, even though it limited politically-motived speech, because it served a legitimate governmental interest, in this case maintaining an efficient draft system. The law was also narrowly tailored to achieve that interest because it applied only to the destruction of draft cards, not other kinds of expression involving the cards. On the opposite end of the spectrum, in Cohen v. California the Court overturned a man’s conviction for wearing a jacket with an expletive that described the Vietnam War, finding that the First Amendment protected this speech. The Court held that the interests of protecting the peace and general morality were not sufficient to stifle this political expression.
The question for Judge Barbadoro, then, in analyzing New Hampshire’s ballot selfie law was whether the prohibition was more like the ban on burning the draft card or the jacket with an expletive. Put differently, did the state have a sufficient reason in limiting vote buying to ban ballot selfies?
The Judge stated that while preventing voter fraud is an important goal and is worthy of state action, the scant evidence of actual vote buying did not support this law. The ACLU had pointed out that there had not been a single instance of voter fraud in the state which involved taking a picture of a ballot. According to Judge Barbadoro, even assuming there was a problem of voter fraud, the law at issue was not properly tailored to fix that problem. Judge Barbadoro reasoned that a person intent on vote buying is unlikely to broadcast his or her intentions on social media; therefore, the only victims of the law are those who innocently wish to make a political point. The court therefore struck down the ballot selfie law as violating the First Amendment. New Hampshire plans to appeal the district court’s ruling.
Indiana passed a similar ban in August of 2015. Plaintiffs immediately challenged it, and Judge Sarah Barker issued a preliminary injunction against the state enforcing the law. Interestingly, Judge Barker also wrote the district court opinion upholding Indiana’s voter ID law back in 2006, another Indiana law designed to combat voter fraud. That case eventually wound up at the U.S. Supreme Court, where the Court found that the law did not violate the Constitution. In the voter ID context, Judge Barker upheld a law passed to combat in-person impersonation even though the state had no evidence that there was any actual voter fraud of this kind. Yet in the ballot selfie case, Judge Barker ruled against the law because the state had no evidence of voter fraud involving pictures of ballots. The difference seems to be that the court analyzed the voter ID law under election law cases that are more deferential to the state, while the court analyzed the ballot selfie ban under the First Amendment, which provides less deference to government restrictions on speech.
The Supreme Court has not yet weighed in on ballot selfies. For now, however, two courts have invalidated bans on ballot selfies as violating the First Amendment. While some states have been moving in the direction of banning ballot selfies, others are moving in the opposite direction. Arizona has passed a law specifically allowing a person to post a picture of a ballot. Arizona officials emphasized that the state is interested in upholding an individual’s right to free speech and that it recognized the New Hampshire and Indiana laws as unconstitutional. Utah adopted a similar measure. A person who is interested in testing the legal waters could snap a picture of his or her ballot and post it on social media. It is unclear what the result may be. Many states have not yet adopted specific bans or allowances and many state laws remain vague on this issue.