New Hampshire Law Banning Ballot Selfies Struck Down As Unconstitutional

As anyone who pays attention to technology and social trends knows, selfies have been a thing for a while now, for some reason. These testaments to the massive inflation of our own egos have occasionally created pushback in a variety of forms, from the banning of selfie sticks from roughly all the places to, sigh, intrusions into intellectual property matters as they relate to damn dirty monkeys. And, in a bit of news that missed my radar for some reason, last year New Hampshire updated its laws prohibiting the photography of voting booths and records to include criminalizing individual voters taking so-called "ballot selfies", in which they proudly tweet out a picture of a completed ballot.

The original laws against this type of thing, most of which were codified in the 1970s, typically were put in place to stave off influencing the public in voting matters by a show of votes and warding off the possibility of paid-for votes being carried out with the photograph being used to confirm the vote was completed. These goals, while seemingly laudible, are misguided for any number of reasons, including the limitation on expression for fear of a might-be-possible-future-crime and the fact that all manner of people discuss their voting habits all the freaking time anyway, such that a photograph doesn't really add much to the discussion. When my friend tells me he writes in Bear Grylls for President every four years because, hey, that dude drinks his own urine, imagine what crazy shit he'll do as President, I don't shout "Pics or it didn't happen!" at him.

And, in a moment of legal beauty, a federal judge in New Hampshire agrees and has declared ballot selfies to be free and protected speech.

In his ruling, U.S. District Court Judge Paul Barbadoro said it's speculation to think people will be coerced into selling votes if they can post the image online. During arguments in June, lawyers for the state acknowledged there are no known cases of vote-buying or coercion in New Hampshire.

"You think people are going to post a photo on Facebook?" he said [during oral arguments]. "'I'm a proud seller of my vote! I just sold my vote for $25!' At some level, you have to use common sense."

The ACLU argued successfully in favor of three voters who had been investigated after posting pictures of completed ballots on social media. Included amongst those three individuals was one gentleman whose photo showed that he had written in his own dog's name because he hated all the legitimate candidates. And before anyone in our government runs off to start investigating whether Fido in fact bribed this man to vote this way, you should know that Fido was dead at the time. Dead dogs go to heaven, they don't commit federal election fraud. Cats might, pending my further study of the possibility.

In any case, the point is that political expression is perhaps the most sacred form of free speech in our republic. A law outlawing a form of that speech in favor of concern for something that hasn't ever happened probably isn't the best way to govern.

"Today's decision is a victory for the First Amendment," Gilles Bissonnette, legal director of the ACLU-NH, said in a prepared statement. "Political speech is essential to a functioning democracy. The First Amendment does not allow the state to, as it was doing here, broadly ban innocent political speech with the hope that such a sweeping ban would address underlying criminal conduct."

Indeed. Selfies are many things, and not all of them good. But they are certainly speech.

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