Excited first-time voters proud to show that they voted for or against, say, President Obama or so disgusted that they wrote in the name of their dead dog, have all been known to post snapshots of their ballots on Twitter or Facebook.
Now, a legal fracas has erupted over whether the display of marked ballots is a constitutionally protected form of speech and political expression, as a federal court in New Hampshire declared this month, overturning a ban on such photographs, or a threat to the hallowed secret ballot that could bring a new era of vote-buying and voter intimidation.
The New Hampshire case is unlikely to be the last to grapple with what are commonly called ballot selfies, whether they include an image of the phone user or not. Numerous states have laws to protect voter secrecy, drafted in an earlier era, that could be construed to ban ballot photographs, said Gilles Bissonnette, the legal director of the American Civil Liberties Union of New Hampshire, which challenged the New Hampshire ban.
A new law in Indiana explicitly bans taking photographs in a voting booth, and rights advocates there are mulling a similar challenge. At the same time, Maine, Oregon and Utah have recently revised their laws, effectively permitting the posting of these images.
In New Hampshire, officials and legislators were so alarmed by the dangers of cellphone photos in voting booths that they outlawed them in 2014, setting a fine of up to $1,000 for showing photographs of completed ballots to others or posting them on social media.
“It’s a sacred area where you vote,” said William M. Gardner, the Secretary of State of New Hampshire, a Democrat and the chief proponent of the law.
Mr. Gardner cited the writings of Alexander Hamilton and James Madison, New Hampshire’s history as the first colony to write its own constitution in 1776, and the state’s “Live Free or Die” slogan. For good measure, in legal proceedings and in an interview, he also invoked the ominous specter of coercive elections run by Saddam Hussein and Hitler.
What ended the flagrant vote-buying and intimidation of the 19th century in America, Mr. Gardner and political historians note, was the advent of truly secret ballots, leaving would-be vote buyers and political bullies unable to verify if their instructions had been carried out. But with the ubiquity of cellphone cameras, the argument goes, that hard-won privacy and security for voters is in danger. Vote-buyers, or a boss demanding that you support a candidate, could demand a photograph of the completed ballot to prove how you voted.
Civil liberties advocates and some conservatives and libertarians in New Hampshire, in an unusual coalition, were quick to condemn the 2014 law as a chilling overreaction to a speculative threat, also summoning the “Live Free or Die” slogan to support their position.
“The problem with this law is that it was an outright ban on an innocent form of communication,” Mr. Bissonnette of the A.C.L.U. said. “It didn’t ban displays involved in vote buying or intimidation. It banned all displays, including ones that carried political messages.” “The best way to combat vote buying and coercion is to investigate and prosecute cases of vote buying and coercion,” Mr. Bissonnette said.
The A.C.L.U. sued in Federal District Court. The plaintiffs included two Republican candidates for the State House of Representatives in 2014 who defiantly posted images of their own primary ballots. One of them, Brandon Ross, a lawyer who describes himself as a “small ‘l’ libertarian” and who lost his run, added the challenge, “Come at me, bro,” to the ballot photograph posted on his Facebook page.
On Aug. 11, in a 42-page opinion that reviewed the history of ballot secrecy and voter intimidation, Judge Paul Barbadoro of Federal District Court in Concord struck down the law. The state provided no evidence of “an actual or imminent problem with images of completed ballots being used to facilitate either vote buying or voter coercion,” Judge Barbadoro said. “The new law is invalid,” he said, “because it is a content-based restriction on speech that cannot survive strict scrutiny,” the most stringent standard for judging infringements on fundamental rights.
It is expected New Hampshire will appeal the ruling.
On a similar issue, I have been a voting monitor for the Independence Party of New York. I would watch sites during the day and would be the assigned party representative at a selected poll closing, recording the closing machine tally's were copied correctly of party's candidates vote.
On one occasion, I was taking cell photos of long lines in a polling place, but was told I could not. But then Henry Kissinger, 56th United States Secretary of State, and the press came in and of course there was a press photo event. In New York, there is no longer a closed voting booth. The press showed Kissinger taking his marked optical scanned ballot and putting it into the scanner.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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