A U.S. District Court judge on Tuesday struck down the state law banning "ballot selfies," calling the prohibition "a content-based restriction on speech that cannot survive strict scrutiny."
Longtime Secretary of State William Gardner, named as defendant in the case, said he was disappointed.
"I don't like the idea of people taking photos inside the polling area," he said. "I think the law did a good job of preventing it."
The ruling by Judge Paul Barbadoro is a victory for the American Civil Liberties Union of New Hampshire, which brought the lawsuit on behalf of three voters who posted images of their completed ballots on social media sites after the Sept. 9 primary.
The voters, including Lancaster Republican state Rep. Leon Rideout, were acting in protest of the ban on "ballot selfies," which had just taken effect on Sept. 1. In the November election, a handful of other voters joined in the protest, posting photos of their completed ballots.
In addition to Rideout, the other plaintiffs in the case are Andrew Langlois of Berlin, who wrote in the name of his deceased dog on the ballot before posting it on Facebook; and Brandon Ross, a candidate for representative from Manchester, who posted a picture of his vote for himself and other Republican candidates and marked his ballot on Facebook with the text, "Come at me, bro."
Although Rideout and the others have been under investigation by the Attorney General, no one has been formally prosecuted or charged under the law, which calls for a fine of up to $1,000 per violation.
Attorneys for the ACLU-NH expressed concern about the law as it took effect, and in October filed the lawsuit, with help from the Manchester law firm of Shaheen & Gordon.
In striking down the law, Barbadoro ruled that the state had failed to demonstrate any compelling interest in preventing people from showing others how they voted via social media.
"The Secretary of State ... produced no evidence that either vote-buying or voter coercion are current problems in New Hampshire," he wrote. "The Secretary (of State) has failed to identify a single instance anywhere in the United States in which a credible claim has been made that digital or photographic images of completed ballots have been used to facilitate vote-buying or voter coercion."
Gilles Bissonnette, legal director of ACLU-NH, called the decision a victory for the First Amendment.
"What this law ignored, and what the court recognized, is that displaying a photograph of a marked ballot on the Internet is a powerful form of political speech that conveys various constitutionally protected messages," he said. "This form of speech, for example, can convey a sense of pride from an 18-year-old, newly-minted voter who is enthusiastic about voting in her first presidential election. This message loses its salience without the photograph of the marked ballot."
Barbadoro wrote that an injunction against enforcing the law is unnecessary, because "I have no reason to believe that the Secretary of State will fail to respect this court's ruling that the new law is unconstitutional on its face."
Gardner, known as a passionate defender of New Hampshire traditions, said the ban on "ballot selfies" was designed to protect voter confidentiality.
"We've tried to create a system that provides for people to be able to vote in a way that is true to themselves, with no other forces involved," he said.
When asked if the state intended to appeal the ruling, Stephen LaBonte, the assistant attorney general who defended the law, said the decision is currently under review at the Department of Justice.
Attorney William Christie of Shaheen & Gordon said the decision, at least for now, eliminates the possibility that anyone can be prosecuted under the law.
"We expect that the state will proceed accordingly and not enforce the law," he said. "A reason we went to court is that the state had indicated that it intended to prosecute one or more of the plaintiffs."
(c)2015 The New Hampshire Union Leader (Manchester, N.H.)
