Should we ban the selfie at the ballot box?

Federal appeals court clears New Hampshire voters to take selfies with their completed ballots on Election Day.

A federal appeals court has cleared New Hampshire voters to take selfies with their completed ballots on Election Day. The three-judge panel in Boston upheld a lower court ruling that found the 2014 state law banning the practice unconstitutional.

The ruling on Wednesday is a victory for free speech and was praised by the American Civil Liberties Union (ACLU) in New Hampshire. Supporters of the law claim that it protected voters from coercion and intimidation.

In September 2014, a law banning voters from publishing their votes was amended to include selfies, reflecting advances in the internet age. Violators faced punishments up to $1,000 in fines if convicted.

Arizona, Delaware, Indiana, Maine, New Hampshire, North Dakota, Oregon, Utah, and Wymoing have laws clearly allowing ballot selfies or no law prohibiting them. Twenty-six other states specifically forbid selfies with blanket prohibitions on cameras in polling places. The law on selfies is ambiguous in 14 other states. Check here to see if your state allows selfies at the ballot box.

The ACLU in New Hampshire filed suit on behalf of three voters who posted ballot photos and were subsequently investigated.

In a 2015 court document, the state claimed that the appeal threatens the state’s “authority” to modify the existing law to reflect technological changes. Judges were concerned that the law would unfairly prosecute innocent expressions of the First Amendment rather than punishing those who buy or coerce votes.

Susannah Goodman, director of Common Cause’s national Voting Integrity Campaign noted that states have an interest in protecting the secret ballot. “The secret ballot was established for a reason. The secret ballot ensures that we can all vote our conscience without undue intimidation and coercion.”

A new report, co-authored by Common Cause, “The Secret Ballot at Risk: Recommendations for Protecting Democracy,” concludes that “The right to cast a secret ballot in a public election is a core value in the United States’ system of self-governance. Secrecy and privacy in elections guard against coercion and are essential to integrity in the electoral process. Secrecy of the ballot is guaranteed in state constitutions and statues nationwide.”

Although a secret ballot is essential to maintaining ballot integrity, opponents of the bill claim the New Hampshire bill is ambiguous and ineffective. “The First Amendment does not allow states to broadly ban innocent political speech with the hope that such a sweeping ban will address underlying criminal conduct,” said Gilles Bissonnette, Legal Director at the ACLU of New Hampshire.  

Even Snapchat, now renamed Snap, Inc., weighed into the issue. The company filed an amicus brief in favor of repealing the law and released this statement: “A ballot selfie—like a campaign button—is a way to express support for or against a cause or a candidate. And because it is tangible proof of how a voter has voted, a ballot selfie is a uniquely powerful form of political expression.”

Although state lawmakers claimed that selfies and digital images of the ballots could lead to voter coercion, the court did not find evidence to substantiate this claim.

The judges agreed that voter intimidation is a serious concern and the state has a responsibility to prevent it. But they said the New Hampshire law was too broad and included “an unsubstantiated and hypothetical danger.” Quoting a 1957 Supreme Court ruling, Judge Sandra Lynch wrote that in practice, the law was like “burning down the house to roast the pig.”