“Selfies in Voting Booths Raise Legal Questions on Speech and Secrecy”

Erik Eckholm for the NYT:

On Aug. 11, in a 42-page opinion that reviewed the history of ballot secrecy and voter intimidation, Judge Paul Barbadoro of Federal District Court in Concord struck down the law.

The state provided no evidence of “an actual or imminent problem with images of completed ballots being used to facilitate either vote buying or voter coercion,” Judge Barbadoro said.

“The new law is invalid,” he said, “because it is a content-based restriction on speech that cannot survive strict scrutiny,” the most stringent standard for judging infringements on fundamental rights.

Many constitutional scholars praised the decision. So heads snapped last week when Richard L. Hasen, a prominent elections expert at the School of Law at the University of California, Irvine, called Judge Barbadoro’s opinion misguided and said allowing voting-booth photography posed a real risk.

In “Why the Selfie is a Threat to Democracy,” an article posted last Tuesday by Reuters and on the Election Law Blog he edits, Mr. Hasen wrote that the court decision “might seem like a victory for the American Way.”

“But the judge made a huge mistake,” he continued, “because without the ballot-selfie ban, we could see the re-emergence of the buying and selling of votes — and even potential coercion from employers, union bosses and others.”

The author of the disputed law, Representative Timothy Horrigan, a Democrat, noted that courts had upheld other restrictions on activity inside polling places, like a ban on campaigning.

Still, in a Twitter comment on Mr. Hasen’s article, Michael McDonald, a specialist in American elections at the University of Florida, said that “reality is nowhere near your hysteria.”

Erwin Chemerinsky, the dean of Mr. Hasen’s law school, said in an email that he disagreed with Mr. Hasen. The New Hampshire law, he said, “is a content-based restriction on speech, and I don’t think that there is sufficient evidence of harm to meet strict scrutiny.”

Support for Mr. Hasen’s position was voiced by Doug Chapin, the director of the program for excellence in election administration at the University of Minnesota. “I still think ballot selfies create a vulnerability in the election process that vastly outweighs any societal or personal benefit the selfie brings,” he wrote in an email. “Perhaps that’s generational, but I think it’s something worth thinking — and worrying — about going forward.”

Mr. Gardner, an ardent proponent of ballot-selfie controls, said he expected New Hampshire to appeal the ruling.


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