New Hampshire’s ballot selfie ban is unconstitutional. Ours probably is too.

Today the U.S. Court of Appeals for the First Circuit (whose decisions apply in both NH and MA) declared that a New Hampshire statute criminalizing “ballot selfies” – that is, taking a photograph of a marked ballot and then sharing the image – is unconstitutional, because it violates voters’ freedom of speech.  I haven’t seen any comment yet from Bill Galvin, Maura Healey, or other MA folk with a role in enforcing our own, archaic law that also seems to prohibit such things, but I can’t see how our law could survive when New Hampshire’s failed.

The New Hampshire statute reads:

No voter shall allow his or her ballot to be seen by any person with the intention of letting it be known how he or she is about to vote or how he or she has voted except as provided in RSA 659:20. This prohibition shall include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.

NH officials defended this law on the borderline absurd ground that it stands as a bulwark against the nefarious practice of selling votes … which, as far as anyone can tell, has literally not happened in NH in decades.  The opinion contains this marvelous passage:

Secretary 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.

Needless to say, the Court was not impressed by the state’s attempted justification for this restriction on speech.  The Court also held that even if the state’s reason for the law were legitimate, the means chosen – criminalizing all ballot selfies – was unacceptably overinclusive: “the State has not demonstrated that other state and federal laws prohibiting vote corruption are not already adequate to the justifications it has identified.”  It therefore held the New Hampshire law unconstitutional.

All of this brings us to an old Massachusetts law which reads:

Whoever, at a primary, caucus or election, … allows the marking of his ballot to be seen by any person for any purpose not authorized by law, … shall be punished by imprisonment for not more than six months or by a fine of not more than one hundred dollars.

There’s no indication as to why this provision is still in effect, though one assumes that the justification for it would be similar to that put forth unsuccessfully by New Hampshire.  But unless Massachusetts has some drastically different reason for outlawing ballot selfies, it’s hard to see why our ban shouldn’t be just as unconstitutional as New Hampshire’s.

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Discuss

28 Comments . Leave a comment below.
  1. Galvin addressed this recently

    MassLive:

    “We’ll discourage it but we can’t prohibit it,” Massachusetts elections chief Bill Galvin said Tuesday.

    “If people insist on doing it, there’s nothing we can do about it,” he acknowledged.

    It seems like a kneejerky thing to ban. Were people really forced to prove they voted for Candidate X? Better to encourage it, to encourage voting.

  2. Remember the purple fingers in Iraq?

    This is the same thing for millennials. Where I’ve seen it most was folks in my past life proud to take UIP ballots and folks on FB early voting for the first woman President. All on social media. I’ll likely send a copy to my roommate of all the unopposed positions I am writing him in for.

    • The purple fingers...

      …are more analogous to “I Voted” stickers. They don’t indicate HOW you voted. To be clear I’m not defending the law, but I suspect its intent was to prevent anyone from being coerced into proving how they voted.

  3. isn't this electioneering... ?

    “ballot selfies” – that is, taking a photograph of a marked ballot and then sharing the image – is unconstitutional, because it violates voters’ freedom of speech.

    …Which is forbid in polling places. Taking a picture of how you voted and distributing same is, to my mind, is different only in tense from hanging a poster of your chosen candidate upon the wall of the polling booth or station. Mass Law specifies exactly what is to be ‘posted’ and what is not. I don’t know what NH law says on that…

    If you can’t post a bill on the wall of the building wherein you vote that says “I’m going to vote for X” then it doesn’t seem to pass muster to do the equivalent in a different tense…

    • You aren't posting it for all to see.

      If you are sending the pic as message the recipients are likely to be outside the 150-foot perimeter at the time of receipt.

      • and so what?

        You aren’t posting it for all to see.(1+ / 0-) View voters

        If you are sending the pic as message the recipients are likely to be outside the 150-foot perimeter at the time of receipt.

        Does the statute differentiate between “all to see” or ” seen by any”? I don’t think it does.

        As well, under your guidelines I could paint a ‘Vote for me” sign on the entire side of the wall of the building using large pixels that only resolve themselves into a picture when seen from a distance of 151 ft or greater…

        • If electioneering includes this

          Then I suppose that the electioneering law is of dubious constitutionality, as in some states where voters are barred from voting if they are wearing a “candidate” tee shirt, as opposed to distributing tee shirts to other voters.

          I seem to recall that someone in Colorado got barred for wearing a MIT tee-shirt in 2012.

        • I think the standard is...

          …are you trying to influence someone within the perimeter.

          • in-exactly...

            …are you trying to influence someone within the perimeter.

            … Your sentence can be read in several ways:

            …are you trying to influence someone [who is] within the perimeter.

            …or…

            …are you trying to influence someone [while you are] within the perimeter.

            It is the latter reading that I’m curious about since I think you are correct, but not comprehensive, when citing the former reading. If it is illegal to be on the outside shouting in, can it not, also, be illegal to be on the inside shouting out?

            I ask again: Is it electioneering to display your vote FROM the polling booth? If not, why not?

            • There is no need to speculate

              There is no need to speculate about what the law says when it is so easy to look it up:

              and no other poster, card, handbill, placard, picture or circular intended to influence the action of the voter shall be posted, exhibited, circulated or distributed in the polling place, in the building where the polling place is located, on the walls thereof, on the premises on which the building stands, or within one hundred and fifty feet of the building entrance door to such polling place.

              (emphasis added)

              There is nothing illegal about trying to influence someone who is within the 150 perimeter as anyone with election day experience knows. Stand behind the 150 foot mark with a campaign sign, a handout or just talk with a voter and you are legit.

              There is no need to posit weird possibilities about posting a projected image on a polling location. Clearly it is against the law. And lest anyone want to raise a question about what precedes the language from the MGL quoted about, it is a lengthy statement about what local election officials must post on the walls inside the voting location about what is on the ballot and voting instructions.

              In real life when violations occur the election officers and/or police inform the offender and they almost always comply. For idiots who become repeat offenders the police have been known to show up at a campaign HQ with lights flashing after they have called the local media. It is much more effective than the $20 fine for violating the law.

              For the full text of MGL Ch. 55 sec 56, see

              https://malegislature.gov/Laws/GeneralLaws/PartI/TitleVIII/Chapter54/Section65

              • yes...

                There is no need to speculate about what the law says when it is so easy to look it up:

                … Thanks. I did look it up. But it didn’t answer the question. Neither have you.

                There is no need to posit weird possibilities about posting a projected image on a polling location. Clearly it is against the law. And lest anyone want to raise a question about what precedes the language from the MGL quoted about, it is a lengthy statement about what local election officials must post on the walls inside the voting location about what is on the ballot and voting instructions.

                “on the walls thereof” was just an example to counter Christophers notion that the thing must be seen by a prospective voter, and that within the perimeter, before the crime can be actualized.

                The question remains, and especially with the words ‘posted, exhibited, circulated or distributed, why wouldn’t a selfie that you post to the internet run afoul of electioneering laws?

                • The last question is easy to answer.

                  Most people viewing the image online are not in a situation to be right there ready to vote and feel pressured to go a certain way in the moment. Even the ones who happen to be glancing at their smartphone as they wait in line are viewing it on their own initiative. Pictures posted to the internet could have been taken anywhere and it would make no difference to the viewer where the picture was taken.

                • It is obvious, petr

                  It is obvious, petr, that you are arguing by picking on christopher rather than addressing the law. You wrote:

                  I ask again: Is it electioneering to display your vote FROM the polling booth? If not, why not?

                  State law makes it clear with simple words that a violation occurs if there is an attempt to influence from within the 150+ barrier the voting of another inside the barrier. If you want to project your image to the wall of a voting location then you violate the law and then they will decide … that it means nada.

                  Your comment about projecting an image on the voting building is easily answered with a double-killer:

                  -it is against the law to (as I posted previously on the walls

            • I meant the former.

              Basically, if I approach a polling location to vote once I cross the 150-foot perimeter I should not have to encounter anyone trying to persuade me to vote a certain way. There should be no signs, t-shirts, buttons with candidate names on them. Nobody should be approaching me with literature. Nobody should be standing in the middle of the room yelling, “Vote for Smith!” If you happen to be in front of me in line and you take a picture of your ballot you are not in anyway influencing my vote UNLESS you then also approach me and say something like, “See this pic I just took? That’s how you should vote too.”

              • ..

                I meant the former.

                I know you meant the former. I said as much. Did you not read it? Was I unclear? I agreed with your assessment of the former, saying outright that it was a forbid case. You seem to say it was the only forbid case and I disagreed with that, asking if this other case, entirely different, but still possibly electioneering might also and why not? Your answer seems to be that since the latter case doesn’t meet the outlines of the former case the latter case cannot be forbid. But I do not think the former case is the entirety of the law: I think you can mean the former and still not comprehensively describe the law.

                ” If you happen to be in front of me in line and you take a picture of your ballot you are not in anyway influencing my vote UNLESS you then also approach me …

                I disagree with your apparent notion that an intent must meet a victim before the crime becomes real. I don’t know that the standard requires somebody to be definitively influenced by a ‘posting’… it just requires that possibility to forbid the ‘posting.’

                Under your standard, it’s actually ok to yell ‘fire!’ in a crowded theatre so long as nobody panics. Good luck with that.

                • No

                  Everybody hears you yelling fire. Not everybody sees you taking a picture of your ballot until you actually show it around. It sounded to me like you thought I was correct about the latter meaning and assumed that’s what I meant. Yes, I do think there must be a victim, because the intent of the law is to protect an unwilling voter from being unduly harassed or feel pressure to vote a certain way. Merely taking a picture doesn’t do that. If the law were written to forbid the transmission or display of said picture to someone within the polling place that might be a different story.

  4. uh-huh

    Because without photographing your ballot, there wold be no way to sell your vote. It’s not as if Cianci was elected with people collecting dozens of absentee ballots, checking the voters filled them out as instructed, then “thanking” the voters.

    I remember some effort in 08 or 04 to get people to sell their votes for an amount, which would be enforced by checking absentee ballots before mailing them to poll clerks. Signers-up would vote for whichever candidate bid highest for that vote cache. It was shut down by the government after several weeks of recruiting.

    sabutai   @   Thu 29 Sep 7:28 PM
  5. Why would the court overturn it if the State never prosecutes?

    I’m not a lawyer, but doesn’t there need to be some sort of injury before there’s standing?

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