After proudly exercising your right to participate in the electoral process, you want to share your excitement with the world. What better way than with a quick voting booth selfie for social media? Democracy always gets a lot of likes.

In the age of smartphones and social media, it’s no surprise that “ballot selfies” are creating tension between free speech rights and privacy concerns. For many, voting forms a part of a larger political, social, and national identity. Casting your vote carries both actual and symbolic significance and serves as a tangible statement of your beliefs.

But those who favor outlawing ballot selfies point to an increased risk of vote buying and intimidation, issues present in the elections of the 19th century until the introduction of truly secret ballots. Photographs of completed ballots could be used as proof to collect a political pay-off or satisfy a coercive boss.

One such opponent of the civic-minded snapshot was New Hampshire state representative Timothy Horrigan, who introduced a bill in 2013 to ban voting booth photographs as “necessary…to prevent situations where a voter could be coerced into posting proof that he or she voted a particular way.”

In August 2015, a federal district court considered a challenge to Horrigan’s recently enacted legislation making it unlawful for voters to disclose digital copies of their completed ballots. Plaintiffs included Leon Rideout, a New Hampshire state representative who posted his ballot to Twitter with the hashtag “#nhpolitics,” and Andrew Langlois, who, in an effort to demonstrate his disgust at the available choice of Republican candidates, wrote in the name of his recently-deceased dog and posted his ballot to Facebook.

With the evidentiary record and legislative history devoid of instances of vote buying or voter coercion since the late 1800s, the court found that the legislation did not address “an actual or imminent problem” and therefore failed to serve a compelling state interest. Even if the state were able to show an actual problem with vote buying or vote coercion, the court said, the law was not sufficiently tailored. The restriction was over-inclusive, likely ensnaring those “who wish to use images of their completed ballots to make a political point” rather than the few potentially involved in criminal schemes, who would be unlikely to broadcast their intentions via the internet. Ultimately, the district court overturned the legislation as a “content-based restriction on speech” unable to survive strict scrutiny.

In September 2015, the State of New Hampshire filed an appeal with the First Circuit, seeking to reverse the district court and oral arguments in front of the three-judge panel began last week. Several organizations, including Harvard Law School’s Cyberalw Clinic, the New Hampshire ACLU, and social media giant Snapchat, have filed amicus briefs in support of the district court’s decision.

This week, New Jersey lawmaker Raj Mukherji introduced a bill to legalize ballot selfies in the Garden State. The current law in the books prohibits a person from showing their voted ballot, an infraction punishable by up to 18 months in prison and a possible $10,000 fine. Admitting that he once shared a picture of his ballot on Facebook, the 32-year-old Mukherji wants to amend the law to specifically exclude voters who voluntarily take a photograph of their own ballot and share it on social media.

So, should you take a ballot selfie? There is no federal law banning ballot selfies, but states have varying views: Pennsylvania says no, New Hampshire is still trying to figure it out, Utah says yes, and you might be able to get away with it in New Jersey (a spokesman for the New Jersey Attorney General’s office said he’s never actually heard anyone being prosecuted for sharing a ballot selfie on social media).

Without more evidence that there are serious corruption concerns lurking behind that selfie from the polling booth, should we really discourage digital celebrations of civic engagement? Perhaps more narrowly tailored laws, targeted directly at photographs of marked ballots used or implicated in vote buying or intimidation schemes, would address privacy concerns without stifling free speech.

Claire Piepenburg

 

Comments are closed.