A New Hampshire ban on standing for a selfie with one’s ballot has been struck down by the 1st U.S. Circuit Court of Appeals.
Though there is no federal law prohibiting the so-called “ballot selfie,” photographing ballots is illegal in 35 states. There are no express bans on ballot selfies in many of these jurisdictions, but it stands to reason that the practice is captured by the existing ban on photographing votes.
Specifics of the restrictions vary with the state; where some laws are narrowly tailored, others ban photography of any kind inside a voting precinct. The Digital Media Law Project has compiled a dataset on state laws governing ballot documentation, which was accurate as of the last election.
Snapchat took up common cause with those battling the restrictions, arguing the practice — popular with many of its users — is a constitutionally-protected First Amendment activity. New Hampshire argues that the law is necessary to prevent coercion or intimidation, suggesting that nefarious characters would entice or intimidate citizens into voting a certain way, and then require them to present photographic evidence corroborating their action. (RELATED: Federal Appeals Court Will Consider Ban On ‘Ballot Selfies’)
A unanimous 1st Circuit panel concluded that the state could present no evidence that any such scheme had ever been concocted. “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,” the court wrote.
The panel applied intermediate scrutiny to the law, and acknowledged that protecting the integrity of the ballot box was a compelling government interest. The panel nonetheless concluded that the government’s remedy was not narrowly tailored.
“New Hampshire has ‘too readily forgone options that could serve its interests just as well, without substantially burdening’ legitimate political speech,” the court wrote. “There are strong First Amendment interests held by the voters in the speech that this amendment prohibits.”
“Whether it’s a campaign button or a selfie from the ballot box, Snapchat believes that expressing participation in the democratic process is an important part of free speech and civic engagement that the First Amendment roundly protects,” a Snapchat spokesperson told The Daily Caller News Foundation.
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