Voting Booth Selfies: Federal Court Finds Ban On Election Selfies Unconstitutional

Election Day is rapidly approaching and if you’re wondering whether or not you can legally take a selfie in the voting booth to commemorate the 2016 election, know the law is on the side of selfie-takers. On Wednesday, a federal court ruled that banning selfies from voting booths is a violation of a voter's’ First Amendment rights.

A 1979 state law (Section 659:35) in New Hampshire prohibiting voters from letting their ballot be seen by another individual was amended in 2014 to also ban selfies, reports the Consumerist. Those who broke the law could be penalized up to $1,000.

The amended section, authored by Rep. Timothy Horrigan (D), reads: “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.”

“It’s a sacred area where you vote,” said William M. Gardner, the secretary of state of New Hampshire and an advocate of the amended law, to The New York Times.

After being investigated for allegedly breaking this law, three New Hampshire residents sued Gardner. Last August, Judge Paul Barbadoro of Federal District Court in Concord overturned the law in a 42-page opinion review. Advocates of the ban argue that selfies in voting booths can allow people to buy and sell votes, but Barbadoro wrote that the state had no proof of “an actual or imminent problem with images of completed ballots being used to facilitate either vote buying or voter coercion.”

While Barbadoro gave his ruling, he did not place an injunction. “I have no reason to believe that the Secretary will fail to respect this Court’s ruling that the new law is unconstitutional on its face,” said Barbadoro.

The state of New Hampshire appealed Barbadoro’s ruling in the First Circuit Court of Appeals, only for a panel to conclude that “there is a substantial mismatch between New Hampshire’s objectives and the ballot-selfie prohibition.” According to the panel, Gardner failed to show an existing problem and is addressing a hypothetical issue.

“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,” explains the court, later adding: “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. 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.”

Last summer, the state of Indiana passed similar legislation that could subject those taking selfies in a voting booth to a “level six” felony penalty. After being sued by the American Civil Liberties Union, a federal judge ruled that such a ban was unconstitutional.