New Hampshire’s law banning voters from posting pictures of completed ballots online squelches free speech and isn’t needed to prevent election fraud, a federal judge ruled Tuesday.
In his ruling, U.S. District Court Judge Paul Barbadoro said it’s speculation to think people will be coerced into selling votes if they can post the image online. During arguments in June, lawyers for the state acknowledged there are no known cases of vote-buying or coercion in New Hampshire.
This worries me. We do have good evidence (cited in my Vote Buying article) that turnout declined in states as they adopted the secret ballot. A secret ballot makes vote buying much harder.
Also, under the Supreme Court’s decision in Burdick v. Takushi, it is not clear that voting constitutes a free speech act worthy of this kind of attention.
The judge’s opinion actually cites my vote buying article and traces the history of vote buying with ballots. It is an erudite opinion giving good historical analysis.
But I think the legal analysis falls apart. Drawing on the Supreme Court’s recent Reed v. Town of Gilbert decision, the court subjects the ban on pictures of ballots to strict scrutiny. It holds the law not narrowly tailored because New Hampshire can simply make it illegal to use a photograph or image of a ballot for purposes of vote buying. The court also points to lack of evidence of a current problem with vote buying.
I think both of these arguments are off the mark. As with Shelby County and voting rights, the very fact that a law is effective makes it very hard to prove a negative. And because vote buying is hard to detect, this law is narrowly tailored to preventing it. Nothing stops a person from being able to tell everyone how he or she voted, on Facebook or otherwise. But the picture of the ballot which can prove if for purposes of a vote buying transaction is uniquely valuable in committing fraud. I am also not sure whether the First Amendment is even implicated, given Burdick.
I hope this case gets reversed by the First Circuit.
Further update: Upon hearing from a number of folks and reflecting, I’ve rethought my Burdick point and agree the First Amendment is implicated even if the act of casting a ballot itself is not a First Amendment act. Nonetheless, for the anti-vote-buying reasons I’ve given, I think this law should survive even strict scrutiny.