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.