UNH Today

The trend of voters taking pictures of their completed ballots in the voting booth and then posting them on social media is illegal in many states, including New Hampshire, where it carries a $1,000 fine.

In 2015, a federal court in New Hampshire overturned the ban, a move that was challenged last week in a federal appeals court. Professor John Greabe, who teaches Constitutional law, civil procedure, and conflict of laws at UNH School of Law in Concord, spoke to the issue with UNH Today.

Professor John Greabe

Update:  On Wednesday, Sept. 28, the First Circuit Court of Appeals in Boston struck down New Hampshire’s ban on ballot selfies, saying it infringed on First Amendment rights. The three-judge panel upheld a lower court ruling that had declared the ban was unconstitutional.

UNH Today: What is at the heart of the issue, really? Some states that have laws against ballot selfies say it is to protect people’s privacy. The state of New Hampshire has argued it could lead to voter fraud or intimidation. Are those valid arguments? 

Greabe: First Amendment precedent requires the state to articulate the interest(s) served by a law — such as this one — that on its face interferes with speech rights. The state has said that this law serves the interests of countering vote buying and/or voter coercion. The underlying notion is that, in situations where voters have sold their votes or succumbed to pressure to vote in a certain way, the purchasing or coercing party will want to see proof that the voter actually voted in the “proper” way.

With respect to the validity of the arguments, New Hampshire has not introduced evidence that vote buying and voter coercion have been problems.  But the State says, correctly, that it has the right to legislate prophylactically in order to avoid problems. The prophylactic argument becomes more difficult, however, when the law intrudes on a constitutional liberty such as the right to free speech. 

UNH Today: Is this a free speech issue?

Greabe: There is no doubt that this law infringes speech. The only question is whether, as the State argues, it is a content-neutral regulation of the time, place or manner of speech. If the First Circuit Court of Appeals, the court before which the case is now pending, agrees with this characterization, it will defer to the State’s prerogative to enact the law a bit more. More likely, the court will agree with the plaintiffs that this law is a content-based regulation of speech in that it prohibits speakers from conveying a particular message through their own chosen means.

And if the court does choose this characterization, the law will almost certainly be held unconstitutional, for it is difficult to see how it meets the test applicable to such laws: that they further a compelling state interest (here, the absence of evidence of vote buying or voter coercion becomes problematic for the State) AND that they are the only practical means of achieving that interest. (Why aren’t laws banning vote buying and voter coercion enough, or why not just ban the taking of pictures in the polling place?) 

UNH Today: Do you think it’s true that it increases voter participation, and if so, is that reason enough for it to be legal?

Greabe: Perhaps. This is an empirical question to which I do not know the answer. To me, the reason it should be legal is that it is speech/expressive conduct and, as a default rule, speech/expressive conduct cannot be restricted absent truly extraordinary circumstances.

Final point: I do not understand why the legislature did not simply ban the taking of pictures in the voting booth. Such a ban would be hard to characterize as anything other than a regulation of conduct – not speech – and therefore would likely be perfectly constitutional. There are all sorts of places where photography by the public is disallowed, including federal court proceedings.