Rideout v. Gardner , 838 F.3d 65 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-2021
LEON H. RIDEOUT, ANDREW LANGLOIS, BRANDON D. ROSS,
Plaintiffs, Appellees,
v.
WILLIAM M. GARDNER,
in his official capacity as Secretary of State of the State of
New Hampshire,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
Before
Lynch, Lipez, and Thompson,
Circuit Judges.
Stephen G. LaBonte, Assistant Attorney General, with whom
Joseph A. Foster, New Hampshire Attorney General, and Laura E. B.
Lombardi, Senior Assistant Attorney General, were on brief, for
appellant.
Gilles R. Bissonnette, with whom American Civil Liberties
Union of New Hampshire, William E. Christie, and Shaheen & Gordon,
P.A. were on brief, for appellees.
Christopher T. Bavitz, Cyberlaw Clinic, Harvard Law School,
Justin Silverman, and Andrew F. Sellars on brief for The New
England First Amendment Coalition and The Keene Sentinel, amici
curiae.
Eugene Volokh and Scott & Cyan Banister First Amendment
Clinic, UCLA School of Law on brief for the Reporters Committee
for Freedom of the Press, amicus curiae.
Neal Kumar Katyal, Sean Marotta, Hogan Lovells US LLP,
Christopher T. Handman, and Dominic F. Perella on brief for
Snapchat, Inc., amicus curiae.
September 28, 2016
LYNCH, Circuit Judge. In 2014, New Hampshire amended a
statute meant to avoid vote buying and voter intimidation by newly
forbidding citizens from photographing their marked ballots and
publicizing such photographs. While the photographs need not show
the voter, they often do and are commonly referred to as "ballot
selfies." The statute imposes a fine of up to $1,000 for a
violation of the prohibition. See N.H. Rev. Stat. Ann. § 659:35,
IV; id. § 651:2, IV(a).
Three New Hampshire citizens who are under investigation
for violation of the revised statute, and who are represented by
the American Civil Liberties Union of New Hampshire, challenged
the statute's constitutionality. The district court held that the
statute is a content-based restriction of speech that on its face
violates the First Amendment. Rideout v. Gardner, 123 F. Supp.
3d 218, 221 (D.N.H. 2015). The New Hampshire Secretary of State
appeals, arguing that the statute is justified as a prophylactic
measure to prevent new technology from facilitating future vote
buying and voter coercion. We affirm on the narrower ground that
the statute as amended fails to meet the test for intermediate
scrutiny under the First Amendment and that the statute's purposes
cannot justify the restrictions it imposes on speech.
I.
In the late nineteenth century, political parties,
unions, and other organizations had the power to print their own
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ballots, each of which was easily identifiable and distinguishable
from other ballots by size and color. This practice allowed the
ballot-printing organizations to observe how individuals voted at
the polls, which in turn created an obviously coercive environment.
During this period, New Hampshire undertook a series of reforms to
combat widespread vote buying and voter intimidation. In 1891,
the State passed legislation requiring the Secretary of State to
prepare ballots for state and federal elections. 1891 N.H. Laws
ch. 49, § 10. The State then passed a statute to forbid any voter
from "allow[ing] his ballot to be seen by any person, with the
intention of letting it be known how he is about to vote." 1911
N.H. Laws ch. 102, § 2.
Since at least 1979, that provision has been codified in
relevant part at section 659:35, I, which, until 2014, read: "No
voter shall allow his ballot to be seen by any person with the
intention of letting it be known how he is about to vote except as
provided in RSA 659:20." The exception in section 659:20 allows
voters who need assistance marking a ballot to receive such
assistance. N.H. Rev. Stat. Ann. § 659:20. In 2014, the New
Hampshire legislature revised section 659:35, I as follows:
No voter shall allow his or her ballot to be seen by any
person with the intention of letting it be known how he
or she is about to vote or how he or she has voted except
as provided in RSA 659:20. This prohibition shall
include taking a digital image or photograph of his or
her marked ballot and distributing or sharing the image
via social media or by any other means.
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Id. § 659:35, I (revisions underlined). The penalty for a
violation of the statute is a fine of up to $1,000. Id. § 659:35,
IV; id. § 651:2, IV(a).
The original version of HB366, the bill amending section
659:35, I, provided that "[n]o voter shall take a photograph or a
digital image of his or her marked ballot," and was introduced by
State Representative Timothy Horrigan on January 3, 2013.
Horrigan stated that "[t]he main reason this bill is necessary is
to prevent situations where a voter could be coerced into posting
proof that he or she voted a particular way." The bill started
at the House Committee on Election Law, which recommended its
passage, and the members of which expressed rationales for the
bill similar to Horrigan's.
The bill then went to the House Committee on Criminal
Justice and Public Safety. Deputy Secretary of State David
Scanlan spoke in support of the bill, emphasizing the need to
prevent vote buying and to protect the "privacy of [the] ballot."
Though a majority of the members of the Criminal Justice Committee
supported the bill, a minority disagreed and filed a report
concluding that the bill was "an intrusion on free speech." In
order to restrict the bill's scope to activity connected to vote
buying, the minority suggested amending the bill as follows:
This prohibition shall include taking a digital image or
photograph of his or her marked ballot and distributing
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or sharing the image via social media or by any other
means only if the distribution or sharing is for the
purpose of receiving pecuniary benefit, as defined in
RSA 640:2, II(c), or avoiding harm, as defined in RSA
640:3.1
The majority of the Criminal Justice Committee did not
support this amendment, however, and HB366, absent the proposed
limitation, proceeded to the full House of Representatives, which
passed it by a vote of 198–96. The bill was then introduced to
the Senate Committee on Public and Municipal Affairs, which
recommended the bill to the full Senate. The Senate passed the
bill, and the Governor signed the bill into law, effective
September 1, 2014.
The legislative history of the bill does not contain any
corroborated evidence of vote buying or voter coercion in New
Hampshire during the twentieth and twenty-first centuries.
Representative Mary Till, who authored the House Committee on
1 New Hampshire law defines "pecuniary benefit" as "any
advantage in the form of money, property, commercial interest or
anything else, the primary significance of which is economic gain;
it does not include economic advantage applicable to the public
generally, such as tax reduction or increased prosperity
generally." N.H. Rev. Stat. Ann. § 640:2, II(c).
New Hampshire law defines "harm" as "any disadvantage or
injury, to person or property or pecuniary interest, including
disadvantage or injury to any other person or entity in whose
welfare the public servant, party official, or voter is interested,
provided that harm shall not be construed to include the exercise
of any conduct protected under the First Amendment to the United
States Constitution or any provision of the federal or state
constitutions." N.H. Rev. Stat. Ann. § 640:3, II.
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Election Law's statement of intent for the bill, provided the sole
anecdotal allegation of vote buying. She asserted:
I was told by a Goffstown resident that he knew for a
fact that one of the major parties paid students from
St[.] Anselm's $50 to vote in the 2012 election. I
don't know whether that is true or not, but I do know
that if I were going to pay someone to vote a particular
way, I would want proof that they actually voted that
way.
No evidence supported this hearsay allegation. The district court
correctly held that "[t]he summary judgment record does not include
any evidence that either vote buying or voter coercion has occurred
in New Hampshire since the late 1800s." Rideout, 123 F. Supp. 3d
at 224.
As of August 11, 2015, when the district court issued
the summary judgment order on appeal here, the New Hampshire
Attorney General's Office had undertaken investigations of four
individuals for alleged violations of section 659:35, I, arising
from their publication of "ballot selfies"2 after voting in the
September 9, 2014 Republican primary election. Three of those
2 Amicus curiae Snapchat highlights the extent of the use
of "ballot selfies," defined not strictly as "a photo where the
photographer is also a subject," but rather as "all smartphone
pictures shared online, including those here . . . [and] any
picture that could violate the New Hampshire statute." As amici
curiae New England First Amendment Coalition and the Keene Sentinel
observe, "the term 'ballot selfie' has worked its way into the
popular lexicon to describe just such a photograph." See, e.g.,
David Mikkelson, Ballot Selfies, Snopes (Feb. 8, 2016),
http://www.snopes.com/dont-selfie-your-ballot.
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individuals -- Leon Rideout, Andrew Langlois, and Brandon Ross --
are the plaintiffs in this case.3
Rideout, a member of the New Hampshire House of
Representatives and a Selectman for Lancaster, New Hampshire, took
a photograph of his ballot, which showed that he had voted for
himself and other Republican candidates in the September 9, 2014
primary. Later that day, he posted the ballot selfie on his
Twitter feed and on his House of Representatives Facebook page.
He then explained in an interview with the Nashua Telegraph,
published on September 11, 2014, that he took and posted the
photograph online "to make a statement," and that he thought
section 659:35, I was "unconstitutional."
Langlois, who voted in Berlin, New Hampshire, did not
approve of the Republican candidates for the United States Senate,
and so wrote in the name of his recently deceased dog, "Akira,"
and took a photograph of his ballot. When he returned home, he
posted the ballot selfie on Facebook with a note that read in part:
"Because all of the candidates SUCK, I did a write-in of
Akira . . . ." He was then called by an investigator from the New
Hampshire Attorney General's Office and informed he was under
investigation.
3 All three plaintiffs have entered into agreements with
the State to toll the three-month statute of limitations period
for section 659:35, I, pending resolution of this litigation.
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Ross, who was a candidate for the New Hampshire House of
Representatives in the 2014 primary, voted in Manchester, New
Hampshire. He took a photograph of his marked ballot, which
reflected that he voted for himself and other Republican
candidates. He was aware of HB366's amendment to section 659:35,
I and, because of the law's penalties, did not immediately
publicize the ballot selfie. More than a week later, on September
19, 2014, having learned that other voters were under investigation
for violating section 659:35, I, Ross posted the ballot selfie on
Facebook with a note reading: "Come at me, bro." Representative
Horrigan, the legislator who had introduced the amendment to
section 659:35, I, filed an election law complaint against Ross,
which led to an investigation of Ross by the state Attorney
General's Office.
On October 31, 2014, the plaintiffs filed suit under 42
U.S.C. § 1983 in the U.S. District Court for the District of New
Hampshire. The complaint sought a declaration invalidating
section 659:35, I as unconstitutional on its face and as applied,
and an injunction forbidding New Hampshire from enforcing the
statute. The parties filed cross-motions for summary judgment and
agreed that no material facts are in dispute.
In a thoughtful opinion, the district court determined
that section 659:35, I is a content-based restriction on speech.
Rideout, 123 F. Supp. 3d at 229. The court observed that the
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Supreme Court has identified statutes as content-based
restrictions "if [the] law applies to particular speech because of
the topic discussed or the idea or message expressed." Id.
(quoting Reed v. Town of Gilbert, 135 S. Ct. 2218, 2227 (2015)).
The district court reasoned that "the law [under review] is plainly
a content-based restriction on speech because it requires
regulators to examine the content of the speech to determine
whether it includes impermissible subject matter." Id.The district court applied strict scrutiny, "which
requires the Government to prove that the restriction furthers a
compelling interest and is narrowly tailored to achieve that
interest." Id. at 228 (quoting Reed, 135 S. Ct. at 2231).
Secretary Gardner, the named defendant, asserted the prevention of
vote buying and voter coercion as the State's compelling interests
justifying the restriction. Id. at 231. The district court found
that although those two asserted interests were "plainly
compelling in the abstract," id., "neither the legislative history
nor the evidentiary record compiled by the Secretary in defense of
this action provide any support for the view that the state has an
actual or imminent problem with images of completed ballots being
used to facilitate either vote buying or voter coercion," id. at
232. And the court found that the statute was not narrowly
tailored because it was "vastly overinclusive" and would, "for the
most part, punish only the innocent while leaving actual
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participants in vote buying and voter coercion schemes unscathed."
Id. at 234. Moreover, the court observed that the Secretary had
failed to demonstrate why narrower alternatives, such as a statute
"mak[ing] it unlawful to use an image of a completed ballot in
connection with vote buying and voter coercion," would not advance
the purported state interests. Id. at 235. The district court
held the statute to be unconstitutional on its face and granted
declaratory relief to the plaintiffs, trusting that such relief
absent an injunction would secure compliance by the Secretary.
Id. at 236.
II.
We give de novo review to an appeal both from a ruling
on cross-motions for summary judgment and from pure issues of law.
Maritimes & Ne. Pipeline, LLC v. Echo Easement Corridor, LLC, 604
F.3d 44, 47 (1st Cir. 2010); Am. Home Assurance Co. v. AGM Marine
Contractors, Inc., 467 F.3d 810, 812 (1st Cir. 2006). Here, no
material facts are in dispute; the issues are ones of law. See
Buchanan v. Maine, 469 F.3d 158, 162 (1st Cir. 2006) (de novo
review of issues of law on appeal from summary judgment).
The First Amendment, which applies to the States through
the Fourteenth Amendment, provides that "Congress shall make no
law . . . abridging the freedom of speech." U.S. Const. amend.
I. Standards to evaluate justifications by the state of a
restriction on speech turn, inter alia, on whether the restriction
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focuses on content, that is, if it applies to "particular speech
because of the topic discussed or the idea or message expressed."
Reed, 135 S. Ct. at 2227. "This commonsense meaning of the phrase
'content based' requires a court to consider whether a regulation
of speech 'on its face' draws distinctions based on the message a
speaker conveys." Id. Content-based regulations are subject to
strict scrutiny, which requires the government to demonstrate "a
compelling interest and . . . narrow[] tailor[ing] to achieve that
interest." Id. at 2231 (quoting Ariz. Free Enter. Club's Freedom
Club PAC v. Bennett, 564 U.S. 721, 734 (2011)). Narrow tailoring
in the strict scrutiny context requires the statute to be "the
least restrictive means among available, effective alternatives."
Ashcroft v. Am. Civil Liberties Union, 542 U.S. 656, 666 (2004).
In contrast, content-neutral regulations require a
lesser level of justification. These laws do not apply to speech
based on or because of the content of what has been said, but
instead "serve[] purposes unrelated to the content of expression."
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). "The
principal inquiry in determining content neutrality . . . is
whether the government has adopted a regulation of speech because
of disagreement with the message it conveys. The government's
purpose is the controlling consideration. A regulation that
serves purposes unrelated to the context of expression is deemed
neutral . . . ." Id. (citation omitted). Content-neutral
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restrictions are subject to intermediate scrutiny, which demands
that the law be "narrowly tailored to serve a significant
governmental interest." Id. "[U]nlike a content-based
restriction of speech, [a content-neutral regulation] 'need not be
the least restrictive or least intrusive means of' serving the
government's interests." McCullen v. Coakley, 134 S. Ct. 2518,
2535 (2014) (quoting Ward, 491 U.S. at 798).
We reach the conclusion that the statute at issue here
is facially unconstitutional even applying only intermediate
scrutiny. 4 See, e.g., McCutcheon v. Fed. Election Comm'n, 134
S. Ct. 1434, 1446 (2014)("Because we find a substantial mismatch
between the Government's stated objective and the means selected
to achieve it, the aggregate limits fail even under the 'closely
drawn' test. We therefore need not parse the differences between
the two standards in this case."). Like in McCutcheon, there is
a substantial mismatch between New Hampshire's objectives and the
ballot-selfie prohibition in section 659:35, I.5
4 The district court chose to rely on reasoning that
section 659:35, I is a content-based restriction. Rideout, 123
F. Supp. 3d at 229. To reach this conclusion, it relied heavily
on the Supreme Court's recent decision in Reed. Id. at 228–29.
Secretary Gardner vigorously contests this conclusion. As the
statute fails even intermediate scrutiny, we need not resolve the
question of whether section 659:35, I is a content-based
regulation.
5 Because the statute fails under intermediate scrutiny,
we also need not reach the plaintiffs' argument that the statute
fails under the overbreadth doctrine. See, e.g., United States
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In order to survive intermediate scrutiny, section
659:35, I must be "narrowly tailored to serve a significant
governmental interest." McCullen, 134 S. Ct. at 2534 (quoting
Ward, 491 U.S. at 796). Though content-neutral laws "'need not
be the least restrictive or least intrusive means of' serving the
government's interests," id. at 2535 (quoting Ward, 491 U.S. at
798), "the government still 'may not regulate expression in such
a manner that a substantial portion of the burden on speech does
not serve to advance its goals,'" id. (quoting Ward, 491 U.S. at
799). The statute fails this standard.
Secretary Gardner essentially concedes that section
659:35, I does not respond to a present "'actual problem' in need
of solving." Brown v. Entm't Merchs. Ass'n, 564 U.S. 786, 799
(2011) (quoting United States v. Playboy Entm't Grp., Inc., 529
U.S. 803, 822 (2000)). Instead, he argues that the statute serves
prophylactically to "preserve the secrecy of the ballot" from
potential future vote buying and voter coercion, because ballot
selfies make it easier for voters to prove how they voted. He
characterizes the amendment in section 659:35, I as a natural
update of the older version of the statute, done in response to
the development of "modern technology, such as digital photography
v. Stevens, 559 U.S. 460, 473 (2010).
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and social media," which may facilitate a future rise in vote
buying and voter intimidation schemes.
As the district court noted, the prevention of vote
buying and voter coercion is unquestionably "compelling in the
abstract." Rideout, 123 F. Supp. 3d at 231. But intermediate
scrutiny is not satisfied by the assertion of abstract interests.
Broad prophylactic prohibitions that fail to "respond[] precisely
to the substantive problem which legitimately concerns" the State
cannot withstand intermediate scrutiny. Members of City Council
of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984).
Digital photography, the internet, and social media are
not unknown quantities -- they have been ubiquitous for several
election cycles, without being shown to have the effect of
furthering vote buying or voter intimidation. As the plaintiffs
note, "small cameras" and digital photography "have been in use
for at least 15 years," and New Hampshire cannot identify a single
complaint of vote buying or intimidation related to a voter's
publishing a photograph of a marked ballot during that period.
Indeed, Secretary Gardner has admitted that New Hampshire has not
received any complaints of vote buying or voter intimidation since
at least 1976, nor has he pointed to any such incidents since the
nineteenth century. "[T]he government's burden is not met when a
'State offer[s] no evidence or anecdotes in support of its
restriction.'" El Día, Inc. v. P.R. Dep't of Consumer Affairs,
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413 F.3d 110, 116 (1st Cir. 2005) (alteration in original) (quoting
Fla. Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995)).6
Secretary Gardner also highlights scattered examples of
cases involving vote buying from other American jurisdictions.
See United States v. Thomas, 510 F.3d 714, 717 (7th Cir. 2007);
United States v. Shatley, 448 F.3d 264, 265–66 (4th Cir. 2006);
United States v. Johnson, No. 5:11–CR–143, 2012 WL 3610254, at *1
(E.D. Ky. Aug. 21, 2012). But Secretary Gardner admits that "there
is no evidence that digital photography [of a ballot shared with
others by a voter] played a[ny] role in any of the examples" he
cites. A few recent instances of vote buying in other states do
not substantiate New Hampshire's asserted interest in targeting
vote buying through banning the publication of ballot selfies.
Secretary Gardner tries to anchor the state interest for
section 659:35, I on Burson v. Freeman, 504 U.S. 191 (1992)
(plurality opinion), which held that Tennessee had a compelling
interest in banning "the solicitation of votes and the display or
6 Secretary Gardner does point to history abroad. He
references the plebiscite held upon the German annexation of
Austria in 1938, in which "Adolf Hitler instituted election rules
that allowed voters to voluntarily show their ballot as they were
voting." He also notes that Saddam Hussein employed ballots
"contain[ing] a code number which he believed could be traced back
to the voter." There is no evidence that these historical examples
from dictatorships have any material relationship to the present
political situation in the State of New Hampshire, a democracy.
Indeed, the restrictions on speech imposed by this amendment are
antithetical to democratic values and particularly impose on
political speech.
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distribution of campaign materials within 100 feet of the entrance
to a polling place." Id. at 193. Burson is obviously
distinguishable. The discussion in Burson of the long history of
regulating polling places and the location of elections makes clear
that the interest at stake in Burson centered on the protection of
physical election spaces from interference and coercion. See id.at 200–10. The plurality acknowledged in Burson that two
competing interests had to be balanced: the right to speak on
political issues and the right to be free from coercion or fraud
at the polling place. Id. at 211.
The intrusion on the voters' First Amendment rights is
much greater here than that involved in Burson. Section 659:35, I
does not secure the immediate physical site of elections, but
instead controls the use of imagery of marked ballots, regardless
of where, when, and how that imagery is publicized.
But even accepting the possibility that ballot selfies
will make vote buying and voter coercion easier by providing proof
of how the voter actually voted, the statute still fails for lack
of narrow tailoring. "[B]y demanding a close fit between ends and
means, the tailoring requirement [under intermediate scrutiny]
prevents the government from too readily 'sacrific[ing] speech for
efficiency.'" McCullen, 134 S. Ct. at 2534 (third alteration in
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original) (quoting Riley v. Nat'l Fed'n of Blind of N.C., Inc.,
487 U.S. 781, 795 (1988)).7
New Hampshire has "too readily forgone options that
could serve its interests just as well, without substantially
burdening" legitimate political speech. Id. at 2537. At least
two different reasons show that New Hampshire has not attempted to
tailor its solution to the potential problem it perceives. First,
the prohibition on ballot selfies reaches and curtails the speech
rights of all voters, not just those motivated to cast a particular
vote for illegal reasons. New Hampshire does so in the name of
trying to prevent a much smaller hypothetical pool of voters who,
New Hampshire fears, may try to sell their votes. New Hampshire
admits that no such vote-selling market has in fact emerged. And
to the extent that the State hypothesizes this will make
intimidation of some voters more likely, that is no reason to
infringe on the rights of all voters.
Second, the State has not demonstrated that other state
and federal laws prohibiting vote corruption are not already
adequate to the justifications it has identified. See 18 U.S.C.
§ 597 (prohibiting buying or selling votes); 52 U.S.C. § 10307(b)
7 Amicus curiae Snapchat notes, by analogy, that other
circuits have similarly held bans on petit juror interviews to
fail at narrow tailoring. See In re Express-News Corp., 695 F.2d
807, 808 (5th Cir. 1982); United States v. Sherman, 581 F.2d 1358,
1360–61 (9th Cir. 1978). We need not examine the analogy.
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(prohibiting voter coercion or intimidation); id. § 10307(c)
(prohibiting "pay[ing] or offer[ing] to pay or accept[ing] payment
either for registration to vote or for voting" in some federal
elections); N.H. Rev. Stat. Ann. § 659:40, I (prohibiting vote-
related bribery); id. § 659:40, II (prohibiting voter coercion or
intimidation); id. § 659:37 (prohibiting interfering with voters).
New Hampshire suggests that it has no criminal statute preventing
a voter from selling votes. That can be easily remedied without
the far reach of this statute. The State may outlaw coercion or
the buying or selling of votes without the need for this
prohibition.8
As the district court observed, there are less
restrictive alternatives available:
[T]he state has an obviously less restrictive way to
address any concern that images of completed ballots
will be used to facilitate vote buying and voter
coercion: it can simply make it unlawful to use an image
of a completed ballot in connection with vote buying and
voter coercion schemes.
Rideout, 123 F. Supp. 3d at 235; see also McCullen, 134 S. Ct. at
2539 ("[T]he Commonwealth has available to it a variety of
approaches that appear capable of serving its interests, without
excluding individuals from areas historically open for speech and
debate."). Indeed, as to narrow tailoring, the plaintiffs point
8 Of course, another solution to New Hampshire's dilemma
of not having a statute that criminalizes vote selling would be to
enact such a statute.
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to the language of the very limitation proposed by the minority of
the House Criminal Justice Committee, but rejected by the majority
of that Committee. The ballot-selfie prohibition is like
"burn[ing down] the house to roast the pig." Butler v. Michigan,
352 U.S. 380, 383 (1957).
There are strong First Amendment interests held by the
voters in the speech that this amendment prohibits. As the Supreme
Court has said, "[t]he use of illustrations or pictures . . .
serves important communicative functions: it attracts the
attention of the audience to the [speaker's] message, and it may
also serve to impart information directly." Zauderer v. Office
of Disciplinary Counsel, 471 U.S. 626, 647 (1985).
The restriction affects voters who are engaged in core
political speech, an area highly protected by the First Amendment.
As amici point out, there is an increased use of social media and
ballot selfies in particular in service of political speech by
voters.9 A ban on ballot selfies would suppress a large swath of
9 Amicus Snapchat stresses that "younger voters
participate in the political process and make their voices heard"
through the use of ballot selfies. According to the Pew Research
Center, in the 2012 election, "22% of registered voters have let
others know how they voted on a social networking site such as
Facebook or Twitter," "30% of registered voters [were] encouraged
to vote for [a particular candidate] by family and friends via
posts on social media such as Facebook and Twitter," and "20% of
registered voters have encouraged others to vote by posting on a
social networking site." Lee Raine, Pew Research Center, Social
Media and Voting (Nov. 6, 2012), http://www.pewinternet.org/
2012/11/06/social-media-and-voting/.
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political speech, which "occupies the core of the protection
afforded by the First Amendment," McIntyre, 514 U.S. at 346; see
also Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (holding
that there is a First Amendment interest in videotaping government
officials performing their duties in public places). Ballot
selfies have taken on a special communicative value: they both
express support for a candidate and communicate that the voter has
in fact given his or her vote to that candidate.
Section 659:35, I reaches and prohibits innocent
political speech by voters unconnected to the State's interest in
avoiding vote buying or voter intimidation. The plaintiffs'
examples show plainly that section 659:35, I "burden[s]
substantially more speech than is necessary to further the
government's legitimate interests." McCullen, 134 S. Ct. at 2535
(quoting Ward, 491 U.S. at 799); see also McIntyre, 514 U.S. at
351 (holding that, despite legitimate interest in reducing fraud,
government could not impose "extremely broad prohibition" on
anonymous leafleting about ballot measures). Indeed, several
states have now expressly authorized ballot selfies, and those
states have not reported an uptick in vote buying or voter
intimidation.10
10 See A.B. 1494, 2015-16 Reg. Sess. (Cal. 2016) (enrolled
Aug. 26, 2016) (amending statute to provide that "[a] voter may
voluntarily disclose how he or she voted if that voluntary act
does not violate any other law"); S.B. 1287, 52d Leg., 1st Reg.
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New Hampshire may not impose such a broad restriction on
speech by banning ballot selfies in order to combat an
unsubstantiated and hypothetical danger. We repeat the old adage:
"a picture is worth a thousand words."
III.
The judgment of the district court is affirmed.
Sess. (Ariz. 2015) (making clear that there is no violation where
"[a] voter . . . makes available an image of the voter's own ballot
by posting on the internet or in some other electronic medium");
H.B. 72, Gen. Sess. (Utah 2015) (effective May 12, 2015) (amending
statute to make clear that statute "does not prohibit an individual
from transferring a photograph of the individual's own ballot in
a manner that allows the photograph to be viewed by the individual
or another"); S.B. 1504, 77th Or. Leg. Assemb., 2d Reg. Sess. (Or.
2014) (effective Jan. 1, 2015) (repealing language in statute that
"[a] person may not show the person's own marked ballot to another
person to reveal how it was marked"); H.P. 1122, 125th Leg., 1st.
Reg. Sess. (Me. 2011) (repealing prohibition of showing a "marked
ballot to another with the intent to reveal how that person
voted"); R.I. State Bd. of Elections, ERLID No. 8372, Rules and
Regulations for Polling Place Conduct (2016) (specifying that
"[t]he electronic recording of specific vote(s) cast by another
person is prohibited").
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