On October 31, 2014, the ACLU-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. An amended version of this complaint can be found here. 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.
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. This Motion was consolidated with a hearing on the merits. On March 27, 2015, the Plaintiffs filed a motion for summary judgment.
On August 11, 2015, the trial court struck down the law and unequivocally concluded that the law violates free speech rights. As the trial 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.”
The State appealed the decision to the First Circuit Court of Appeals in Boston. On April 15, 2016, the ACLU-NH filed its brief before the First Circuit.
On September 28, 2016, the First Circuit agreed with the trial court and held that the law was unconstitutional. As the First Circuit held: “The restriction affects voters who are engaged in core political speech, an area highly protected by the First Amendment …. Ballot selfies have taken on a special communicative value: they both express support for a candidate and communicate that the voter has in fact given his or her vote to that candidate.” The Court added: “New Hampshire may not impose such a broad restriction on speech banning ballot selfies in order to combat an unsubstantiated and hypothetical danger. We repeat the old adage: ‘a picture is worth a thousand words.’”
On April 3, 2017, the U.S. Supreme Court denied certiorari.