Ballot selfie ban violates free speech

A growing trend across the country at the state level is passage of laws prohibiting so-called ballot selfies, which is “taking a digital image or photograph of [a] marked ballot and distributing or sharing the image via social media or by any other means.” The justification for these prohibitions is that it prevents vote buying and preserves the right to a secret ballot.

A prohibition on ballot selfies was adopted in New Hampshire in 2014 and almost immediately challenged. ArsTechnica reports, “State lawmakers, when approving the law that carries a $1,000 fine, had maintained in 2014 that the statute was needed to combat voter fraud—like having people coerced into voting a certain way.”

The 1st US Circuit Court of Appeals ruled in September, “Digital photography, the internet, and social media are not unknown quantities — they have been ubiquitous for several election cycles, without being shown to have the effect of furthering vote buying or voter intimidation. As the plaintiffs note, ‘small cameras’ and digital photography ‘have been in use for at least 15 years,’ and New Hampshire cannot identify a single complaint of vote buying or intimidation related to a voter’s publishing a photograph of a marked ballot during that period.” Adding, “Secretary [of State William] Gardner has admitted that New Hampshire has not received any complaints of vote buying or voter intimidation since at least 1976, nor has he pointed to any such incidents since the nineteenth century.” (emphasis added)

That’s one argument debunked.

Next is the claim that prohibiting anyone from posting a photo of their ballot somehow protects the right of the voter to cast a secret ballot. The Court wrote, the law “controls the use of imagery of marked ballots, regardless of where, when, and how that imagery is publicized,” adding, “the prohibition on ballot selfies reaches and curtails the speech rights of all voters, not just those motivated to cast a particular vote for illegal reasons.”

In other words, just because you have a right to a secret ballot, does not mean you are obligated to keep your ballot secret.

Efforts to repeal a similar law in Colorado failed earlier this year, and now that law is being challenged as well.

One can hope that legislative bodies across the country will heed the words of the 1st Circuit Court of Appeals that the state “may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger.”