Just in time for the Nov. 8 presidential elections, a federal appeals court on Wednesday declared a New Hampshire law banning so-called ballot booth selfies "facially unconstitutional."
The 1st US Circuit Court of Appeals ruled (PDF) there was no compelling government need to restrict First Amendment rights and ban voters from disseminating pictures of their ballots or of themselves posed with their ballots. State lawmakers, when approving the law that carries a $1,000 fine, had maintained in 2014 that the statute was needed to combat voter fraud—like having people coerced into voting a certain way and then having to prove it via social media or by some other means, for example. The appeals court explained:
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.
No federal law addresses the issue. That means across the US, the law in the 50 states on voting booth selfies remains mixed. There's a few court challenges across the country. The court that ruled Wednesday covers the states of New Hampshire, Massachusetts, and Maine. The Huffington Post has a lengthy guide on which state's it's OK to post a picture of yourself showing your votes this November.
In essence, the ballot-booth selfie issue is a collision of the nation's history of ballot box secrecy and a public willing to post selfies of themselves doing just about anything, from having sex to eating dinner.
In a friend-of-the-court brief in the New Hampshire case, Snapchat essentially argued that a ballot booth selfie was a God-given, American First Amendment right-of-passage. Ballot selfies, the company maintained, "are important ways that younger voters participate in the political process and make their voices heard." In a footnote, Snapchat defined the selfie as being, "a photo where the photographer is also a subject. But the term has also been used to describe all smartphone pictures shared online, including those here."
New Hampshire argued that its law outlawing selfies "preserves the integrity of New Hampshire elections."
"The statute secures voter's right to vote their conscience while in the voting booth," New Hampshire told the court.
The three-member panel circuit court's unanimous decision upholds a lower court judge who had ruled similarly.
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