Aug 112015

August 11, 2015

CONTACT: Gilles Bissonnette, Legal Director of the American Civil Liberties Union of New Hampshire;; 603-224-5591. (All unquoted language below can be attributed to Mr. Bissonnette)

CONCORD – Today, in a victory for the First Amendment, the U.S. District Court for the District of New Hampshire struck down New Hampshire’s law banning “ballot selfies” on the grounds that it violates the right to free speech under the First Amendment.

In a thoughtful, 42-page opinion, the Court unequivocally concluded that the law violates free speech rights. As the Court held: “Because [the law] is vastly overinclusive and the Secretary [of State] has failed to demonstrate that less speech-restrictive alternatives will be ineffective to address the state’s concerns [regarding vote bribery and voter coercion], it cannot stand to the extent that it bars voters from disclosing images of their completed ballots.”

This law, which became effective on September 1, 2014, banned a person from displaying a photograph of a marked ballot reflecting “how he or she has voted,” including on the Internet through social media platforms like Twitter, Facebook, and Instagram. Under the law, willfully engaging in this form of political speech was a violation-level offense punishable by a fine of up to $1,000. The law contained no exceptions.

In October 2014, the American Civil Liberties Union of New Hampshire (“ACLU-NH”) brought this lawsuit challenging this law on behalf of three New Hampshire voters, including one member of the New Hampshire House of Representatives. These voters were represented by Gilles Bissonnette, the Legal Director of the ACLU-NH, and William Christie of the law firm Shaheen & Gordon, P.A.

The Court’s opinion striking down the law concluded that the State had failed to demonstrate that the governmental interests behind the law—namely, addressing vote buying and voter coercion—were compelling. As the Court explained, “[a]lthough the Secretary [of State] was given the opportunity to do so, he produced no evidence that either vote buying or voter coercion are current problems in New Hampshire.” The Court added: “[T]he Secretary has failed to identify a single instance anywhere in the United States in which a credible claim has been made that digital or photographic images of completed ballots have been used to facilitate vote buying or voter coercion.” The Court further concluded that “both history and common sense undermine rather than support the state’s contention that vote buying and voter coercion will occur if the state is not permitted to bar voters from displaying images of their completed ballots.”

The Court also ruled that the law was unconstitutionally overbroad because it “deprive[d] voters of one of their most powerful means of letting the world know how they voted.” The Court noted that “the means that the state has chosen to address the issue will, for the most part, punish only the innocent while leaving actual participants in vote buying and voter coercion schemes unscathed.” According to the Court, this was evidenced by the plaintiffs themselves: “As the complaints of the voters who are now under investigation reveal, the people who are most likely to be ensnared by the new law are those who wish to use images of their completed ballots to make a political point.”

“Today’s decision is a victory for the First Amendment. 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 would address underlying criminal conduct,” said Gilles Bissonnette, the Legal Director of the ACLU-NH.

“What this law ignored, and what the Court recognized, is that displaying a photograph of a marked ballot on the Internet is a powerful form of political speech that conveys various constitutionally-protected messages. This form of speech, for example, can convey a sense of pride from an 18-year-old, newly-minted voter who is enthusiastic about voting in her first presidential selection. This message loses its salience without the photograph of the marked ballot.”

Voting is an act of extraordinary importance. And it is because of this importance that the First Amendment also ensures that citizens are free to communicate their experiences at the polls, including the people for whom they voted if they so wish. There is no more potent way to communicate one’s support for a candidate than to voluntarily display a photograph of one’s marked ballot depicting one’s vote for that candidate. However, the law totally banned this form of political speech. As the Court concluded, this ban is wrong and it violates the First Amendment.

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