On October 31, 2014, the ACLU of NH filed a federal lawsuit on behalf of three New Hampshire voters—including one member of the New Hampshire House of Representatives—challenging RSA 659:35(I) on the grounds that it violates the right to free speech under the First Amendment. This law, which became effective on September 1, 2014, bans 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. Now, willfully engaging in this form of political speech is a violation-level offense punishable by a fine of up to $1,000. The law contains no exceptions.
RSA 659:35(I) violates the First Amendment by banning pure political speech on matters of public concern beyond the polling place (including in one’s home) that is not remotely related to the State’s purported interest in enacting the law—namely, addressing vote-buying and voter coercion. “Political speech is essential to a functioning democracy. The First Amendment does not allow the State to, as it is doing here, broadly ban innocent political speech with the hope that such a sweeping ban will address underlying criminal conduct,” says Gilles Bissonnette, staff attorney of the ACLU of NH.
Troublingly, the New Hampshire Attorney General’s Office is currently investigating people for engaging in political speech purportedly in violation of RSA 659:35(I) arising from the September 9, 2014 primary election. Two of the Plaintiffs in the lawsuit—Representative Leon H. Rideout and Andrew Langlois—are currently being investigated under the law. For example, on Mr. Langlois’ marked ballot that he later published on Facebook, he wrote the name of his recently-deceased dog “Akira” as his Republican choice for U.S. Senate. Mr. Langlois’ vote and the publication of his ballot on social media were acts of protest against his choices for Senate—each of whom he disapproved. Mr. Langlois' story is depicted here. It is clear that this posting plainly bears no relationship to vote corruption and is pure political speech that is now banned under RSA 659:35(I).
What this law ignores 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 can convey a sense of pride from an 18-year-old, newly-minted voter who is enthusiastic about voting in her first presidential selection. It can convey, as it did with Plaintiff Andrew Langlois, the political message of disappointment with one’s choices of candidates. It can convey, as it did with Plaintiffs Representative Leon H. Rideout and Brandon D. Ross who each posted photographs of their marked ballots on social media following the September 9, 2014 primary election, both protest against the law and enthusiasm in voting for oneself as a political candidate for office. These messages lose their 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, RSA 659:35(I) totally bans this form of political speech. This ban is wrong and it violates the First Amendment.
UPDATE: On November 12, 2014, the Plaintiffs filed a motion for a preliminary injunction asking the Court to prevent enforcement of the law while this lawsuit is pending.