Court overturns New Hampshire’s ban on selfies in the polling booth, undermines secret ballot

Law professor and election law blogger Rick Hasen published an article last night in Reuters titled “Why the selfie is a threat to democracy,” and I thought the headline was misleading clickbait.

It is not misleading clickbait. It is a serious, valid argument. The selfie is a threat to democracy.

Hasen’s particular issue is with the a federal court’s recent decision to strike down New Hampshire’s ban on taking selfies in the polling booth. As the court held, since bans on photographs are a First Amendment issue, New Hampshire’s ban fell under strict scrutiny, meaning that the state needed to show a “compelling interest” in order to justify its law, which would need to be “narrowly tailored.” The court held that the state didn’t quite pass this test, and struck the ban down.

However, as Hasen notes, there is absolutely a compelling interest in outlawing taking photos, especially selfies, in the polling booth: selfies with your ballot undermine the secret ballot, and can open the door to coercion and/or vote buying. After all, if someone offers to pay you $5 to vote for Candidate X, you can take their money, vote for Candidate Y and tell them whatever you want. But if your boss tells you that if you don’t come out of the polling booth with a picture of you holding up a ballot marked for Candidate X then you’re fired, that’s a different proposition entirely.

As Hasen wrote, the judge who issued the ruling understood this problem, but found that it wasn’t reason enough to maintain the ban: “Barbadoro ruled that preventing vote buying and coercion was a compelling interest in the abstract — but the state could not show that vote buying is a real problem now.”

Hasen argues that this is a mistake. For starters, to the extent that voter fraud does occur in elections today, most prosecutable cases are related to vote buying. However, much of the vote buying that does occur is related to absentee ballots, which vote buyers can look at before they are mailed back to the registrar to ensure they have been filled out “correctly.” There aren’t any documented cases of selfies being used to verify bought votes, which has something to do with the fact that taking pictures of your ballot is illegal. This being the case, Hasen points out that to overturn a ban on polling booth selfies because the state couldn’t prove they had been used to verify bought votes is, to borrow an argument from Ruth Bader Ginsburg, “like throwing away your umbrella in a rainstorm because you are not getting wet.”

But the ruling isn’t just incorrect on the question of whether the state has a compelling interest in banning polling booth selfies. It also incorrectly finds that the law isn’t “narrowly tailored.” As Hasen counters:

Selfie, via Wikimedia Commons

Selfie, via Wikimedia Commons

Barbadoro also said the law was not narrowly tailored, given that nothing would stop someone from posting on Facebook, or elsewhere, information about how he or she voted. What this analysis misses is that a picture of a valid voted ballot, unlike a simple expression of how someone voted, is unique in being able to prove how someone voted.

Indeed, it is hard to imagine a more narrowly tailored law to prevent vote buying. Tell the world you voted for Trump! Use skywriting. Scream it to the heavens. We just won’t give you the tools to sell your vote or get forced to vote one way or another.

People tell each other how they voted all the time. And we almost always have no reason not to believe them. But the question, “Who did you vote for?” means a lot less when coming from a friend or acquaintance than it does from someone who has made a semi-contractual claim on the disposition of your ballot. New Hampshire didn’t ban telling people who you voted for; it banned proving who you voted for with photographic evidence. That’s narrow tailoring, with a compelling interest.

Hasen suggests that a higher court could and should intervene to reinstate the ban. I agree. Selfies are, indeed, a threat to democracy.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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29 Responses to “Court overturns New Hampshire’s ban on selfies in the polling booth, undermines secret ballot”

  1. Squiregeek says:

    This looks like the same argument made against the Oregon mail-in ballot system back when it was new. Husbands were going to force the wife to vote a certain way, or employers would do the same. So far in 15-years, I’ve seen no example of such a thing happening. Voting booth selfies will be rare and uneventful.

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  3. DoverBill says:

    “Selfies suck.”?

    I take it that a certain organ or yours is in proportion to your avatar?

  4. DoverBill says:

    Then again, the only way so stop a bad voter in a booth is with a good…?

    BTW, how freakin’ easy is it to fake this these days with a sample ballot and Photoshop or simply Photoshop?

    Just another non-problem looking for a non-solution.

    Why do idiots waste time on bullshit such as this?

  5. DoverBill says:

    How is it that there is no problem with me taking – in a voting booth – a picture of my enormous…

    Ah, fuck it; never mind… makes just about as much sense.

  6. ihazconservative says:

    I understand regarding coercion, but does that even work? It’s not illegal to tell your employees how you want them to vote, although it’s unethical in my book. It is illegal to make them vote a certain way, and I understand the scenario of there needing to be proof so a photo would do that, but making it illegal isn’t going to stop a photo when there’s nobody to stop you from taking it. I voted Working Families Party here in New York and took a picture of the ballot–not a selfie–and put it up on FB as a [minor] protest [that nobody noticed] against both parties. So maybe I’m coming from that viewpoint of someone who has done it for innocuous reasons, but I don’t see making it illegal changing anything.

  7. BeccaM says:

    The problem as raised here isn’t the vote rigging, but vote coercion, and as I pointed out in those links, there HAVE been attempts in just the last decade by employers seeking to coerce their employees to vote a particular way.

    Banning photography in the voting booth serves a protective purpose and there are very good reasons to have a secret ballot.

  8. ihazconservative says:

    It’s not the first time I’ve commented here, but if I was a conservative raising sincere arguments that you happen to disagree with I wouldn’t be so quick to label me a troll. Troll doesn’t = you say things I don’t like. As it happens, I’m a liberal who doesn’t see widespread evidence of vote rigging on either side. I don’t find it a big deal that people can take photos in voting booths legally when they can still choose to do so in secret regardless of its legality. After all, if they are already selling their vote and breaking the law, they aren’t going to be concerned about taking a flash-less cameraphone shot in a private booth if it’s illegal.

  9. BeccaM says:

    And today’s the first day you’ve shown up here. Hey, welcome to AmericaBlog. Now are you going to make it clear to us whether you’re a conservative troll or you just don’t see any particular problem with America’s increasingly GOP-rigged voting systems?

  10. ihazconservative says:

    Right, your illustrious reputation doesn’t proceed you, and that’s why I said “like” not “are”.

  11. BeccaM says:

    You’re a hoot and clearly have no idea who I am.

    p.s. Wingnuts rarely source links on progressive blogs and websites. They just assert shit like “there is no coercion going on” and “no boss would ever risk threatening employees with termination if they fail to vote Republican.” And you’re the one with the ‘Ihazconservative’ avatar name.

  12. ihazconservative says:

    You sound like a wingnut decrying voter fraud that doesn’t exist, and your links aren’t evidence of voter fraud. The premise made perfect sense.

  13. BeccaM says:

    What? You mean like these guys who never faced charges when they tried to coerce their employees to vote Republican?

    http://thinkprogress.org/climate/2012/10/15/1010581/koch-employee-votes/

    Or this one:

    http://thinkprogress.org/economy/2012/10/09/978211/david-siegel-fire-employees/

    Your premise also makes no sense at all.

  14. BeccaM says:

    Nobody NEEDS to take a photo of themselves in the voting booth or of their ballot. Yes, there was a compelling reason to abridge the secrecy of the ballot to allow absentee and assisted voting, in limited circumstances. There is a good reason not to allow photos and no necessary justification for it, other than people’s egos — and which also opens the door to fairly significant shenanigans.

    In the last several elections, there have been more than a few cases of people in positions of authority issuing veiled — or in some cases, not-so-veiled — threats against employees to vote a particular way. Hell, I remember a certain mining company owner threatening to fire most of his employees if Obama and the Dems won. He was never prosecuted for this act of electoral coercion. Given a court ruling like this, I can see no legal impediment to his demanding to see a selfie of an employee’s ballot, upon threat of termination.

  15. Jon Green says:

    Arguing for a ban on selfies in the polling booth in no way commits someone to a ban on absentee voting. It *maybe* commits someone to a ban on taking a selfie with your filled-out absentee ballot.

    I guess what this comes down to is that, for pragmatic reasons, we recognize that absentee balloting is necessary, even if a little fraud is priced into that system. But photography in the polling booth is by no means necessary, especially if it allows for the kinds of fraud that the secret ballot has done a good job of preventing.

    Did you read the Hasen article? He went into quite a bit more detail than I did about vote buying, past and present. It isn’t some trumped-up hypothetical.

  16. ihazconservative says:

    People are prosecuted for vote buying and that won’t change, no matter the way they try to go about it. The story you linked to isn’t an example of what you are trying to address. And frankly, it’s not the best example at all–it was a ridiculously large conspiracy involving drugs, guns, extortion, etc. It’s actually pretty insane! But the fact remains if this law had been on the books in Kentucky that wouldn’t have made any difference in that story. If you are arguing for making photography illegal because of vote buying, you should also be arguing for a ban or reform of absentee ballots, where the problem actually exists. So why aren’t you?

  17. Jon Green says:

    Sure it’s enforceable. People are prosecuted for vote buying all the time: http://www.kentucky.com/2010/03/26/1197075/jury-convicts-all-8-defendants.html. This ruling isn’t addressing a “what-if,” it’s taking an existing (if small) problem and opening the door for it to become worse.

    And even if none of that were true, to say that because we can’t prevent something we shouldn’t bother to make it illegal/prosecute it when it happens is an argument against a TON of laws that I think we’d all agree are worth keeping around.

  18. ihazconservative says:

    When we try to make behavior illegal, I’d prefer it address actual problems and not “what ifs”. Is there even one case of a selfie being used for vote buying proof? You yourself said that vote buying occurs with absentee ballots–should we outlaw those, then? That would seem to make more sense if that’s the issue you want to address. The point of bringing up the secrecy of the voting booth is to say people aren’t going to know if you took a photo or not. It’s a problem that doesn’t exist, and a solution that isn’t very enforceable.

  19. Jon Green says:

    Yes, the voting booth is secret. That is, if you don’t take a photo of you with your ballot, thereby proving who you vote for. This wasn’t a problem yesterday, but absolutely could be tomorrow now that it’s been legalized, which was Hasen’s whole point: The Court’s thrown away its umbrella since it wasn’t getting wet. As I linked to, and as Hasen outlines in more detail, to the extent that voter fraud does occur today, it occurs through vote buying. Right now, that’s almost entirely limited to absentee balloting because there’s no way for someone to prove who they voted for in the ballot box. In New Hampshire, that’s no longer the case.

  20. ihazconservative says:

    Like I said, the voting booth is secret. People aren’t going to know what you do or don’t do, and this hasn’t been shown to be a problem. Much like the laws that seek to suppress voting because of imaginary fraud, this is an imaginary problem that doesn’t need a solution.

  21. Indigo says:

    You’re right, I’m not adjusting to the Oligarchy very well. Full compliance involves over-riding old habits, ingrained values, and refraining from analytical thought.

  22. nicho says:

    That was in the old USA, when we had a functioning democracy. Before conservatives were invented.

  23. nicho says:

    What is the purpose of taking a selfie with your ballot if not to show someone how you voted. If it were a friend, they could just take your word for it. Why do you have to prove it? There’s no good argument in favor of taking selfies in a voting booth — or anywhere for that matter. Selfies suck. But it does open the way for abuse. Conservatives seem to have their panties in a collective wad about voting abuses. You’d think they would be all over this issue.

  24. ihazconservative says:

    It’s rare that bosses give directives on how to vote, and it is illegal to force them to vote a particular way. Does it or could it happen? Sure, but making photography illegal in a secret voting booth isn’t going to stop that illegal act of trying to force people to vote a certain way. Because it’s secret. You don’t know what they do–that’s the entire point.

  25. Indigo says:

    Huh! I would expect the voting booth to be a camera-free zone. I guess I’m wrong again.

  26. Jonah says:

    There was a great analysis of the little-talked about Supreme Court ruling that enabled this decision. Check it out: http://www.nytimes.com/2015/08/18/us/politics/courts-free-speech-expansion-has-far-reaching-consequences.html?_r=0

  27. nicho says:

    Bosses tell employees how to vote now. This would just make sure they followed his orders. Bosses also tell employees who to contribute to and how much to contribute. They’ve been getting away with that for years.

  28. ihazconservative says:

    It’s pretty dumb. Yes, a boss can take the risk of telling his employees to vote a certain way and take pictures of their votes, but how long is that likely to last before he faces charges? Unless someone is in the voting booth with you, it would be impossible to enforce somebody taking a picture of their ballot. That aside from the fact that it’s a remedy for a problem that doesn’t exist.

  29. nicho says:

    Oh, I think it’s worse than that. Imagine Tea Party Ted, Militia Mike, or Klansman Karl sending the wife or 19-year-old kids off to vote and requiring them to show him a photo of their completed ballot. Or militiamen all having to show how they voted to remain in good standing.

    But, of course, all the angst over this ignores the fact that our electoral system has been corrupted beyond all belief. So, this is the least of our problems. In our next presidential election we will get to choose between two corporatist, pro-Israel terror, warmongers. There will be some differences between them, but on the crucial issues, they will be cut from the same bolt of cloth.

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