Ballot Selfies Pit Tradition Against Technology


At first glance, a petition recently filed with the U.S. Supreme Court simply asks whether New Hampshire’s ballot selfie ban is constitutional.

The law prohibits a person from taking a picture of their marked ballot and distributing it via social media.
However, the case—Gardner v. Rideout, No. 16-828—can also be seen as a fight against the encroachment of technology into many facets of modern life.

The right to vote freely is protected by the secret ballot, which “exemplifies the respected tradition of anonymity in the advocacy of political causes,” the petition brought by New Hampshire’s secretary of state says.

Technology, however, allows “other parties to invade the sanctity of the voting booth and eliminate the anonymity of the secret ballot,” it says.

This could result in vote buying and voter coercion, the petition says.

The First Circuit didn’t buy that argument.

It ruled in Sept. 2016 that the law doesn’t pass muster under intermediate scrutiny because its purpose—to prevent vote buying and voter coercion—can’t justify the restrictions it imposes on speech.

The court noted that the state failed to present evidence that the selfies were being used in such a manner.

Say Cheese?

There’s no unifying standard when it comes to ballot selfie laws.

Twenty states and the District of Columbia allow ballot selfies. Eighteen states have outlawed the practice while it’s unclear in 12 states what the status of the law is.

The petition notes that there are “three states dealing with challenges to similar statutes in the federal court system.”

Many people also don’t know that it’s illegal to take a picture of oneself with a filled-out ballot.

New York Lieutenant Governor Kathy Hochul tweeted a photo of her ballot for Hillary Clinton during the state’s presidential primary, which is a misdemeanor under state law. Hochul deleted the tweet later after its illegality became the topic of online discussions.

Entertainer Justin Timberlake tweeted a photo of himself in a Tennessee voting booth to encourage people to vote, which he also later deleted after questions of its legality were raised.

Tug of War.

New Hampshire’s petition notes that it “cannot be disputed that the world is a different place” because of advances in technology.

If the Court decides to take the case, it could help resolve the tug of war between past norms and current technological innovations.

Justice Antonin Scalia’s concurring opinion in Burson v. Freeman said that “restrictions on speech around polling places on election day are as venerable a part of the American tradition as the secret ballot.”

In Burson, the Court held that a Tennessee rule banning the solicitation of votes and the display or distribution of campaign materials within 100 feet of the entrance to a polling place was constitutional.

Will the Supreme Court find that ballot selfie bans should become the latest permissible free speech restriction at voting places?

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