Snap Away This Election Day: Court Deems N.H. Law Banning Ballot Photos Unconstitutional

Voting booths in Bedford High School in New Hampshire as seen during the primary in February. (Jesse Costa/WBUR)
Voting booths in Bedford High School in New Hampshire as seen during the primary in February. (Jesse Costa/WBUR)

A New Hampshire law that prohibits voters from posting photos of their ballots online suppresses a large swath of political speech and is unconstitutional, a federal appeals court ruled on Wednesday.

The state law, which took effect in September 2014, made posting a photo of a completed ballot a violation punishable by a fine of up to $1,000. It was struck down a year ago, but the state appealed to the 1st U.S. Circuit Court of Appeals in Boston, which heard arguments this month and issued a decision Wednesday upholding the earlier ruling.

Lawyers for New Hampshire contended the ban would prevent vote buying and voter coercion. They used a hypothetical example of a boss telling an employee to vote a certain way or face losing his job and then demanding a photo as proof.

But the appeals court, in its ruling, said that while voter coercion is a compelling interest, the state failed to tailor its solution to the potential problem.

"New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger," the court wrote. "We repeat the old adage: 'A picture is worth a thousand words.' "

The court noted that digital photography and social media have been ubiquitous for several election cycles, without resulting in increased vote buying or voter intimidation. In fact, New Hampshire officials acknowledged that they had not received any complaints since at least 1976.

The court also said the state could outlaw coercion or the buying of votes without such a prohibition on photos.

The American Civil Liberties Union of New Hampshire filed a federal lawsuit on behalf of three voters, including a man who voted for his dead dog because he didn't approve of the candidates and posted a photo of the ballot online.

"Today's decision is a victory for the First Amendment," said ACLU-New Hampshire legal director Gilles Bissonnette. "The First Circuit correctly recognized that political speech is essential to a functioning democracy. The First Amendment does not allow the State to, as it was doing here, broadly ban innocent political speech with the hope that such a sweeping ban will address underlying criminal conduct."

Bissonnette said the best way to combat vote buying and voter coercion is to investigate and prosecute such cases.

Massachusetts has a similar law banning voters from posting photos of their ballots, however Secretary of State William Galvin has said punishing offenders is not a high priority.



More from WBUR

Listen Live