New Hampshire federal court: Prohibition against distributing ballot photos is unconstitutional

|The Volokh Conspiracy |

A few years ago, I did a little bit of research on the development of the "secret ballot." It's not constitutionally mandated—at least, not in the federal constitution, though in some states it is expressly required—and I was surprised to learn that it only came into widespread use in this country in the late 1800s (part of the wave of progressive anti-corruption reform that was building up steam at the time). I was also surprised to find (though it makes perfect sense in retrospect) that secret ballot rules were introduced and adopted not (as I had assumed) on some kind of "privacy" rationale—i.e., grounded in a right to keep one's voting behavior secret from prying eyes—but rather as a means to defeat vote-buying schemes, which had reached epidemic proportions by the 1870s and 1880s.

(It all goes back to ancient Rome, as the reformers pointed out; the public voting schemes then in place were derived ultimately from the Roman viva voce, and suffered from the same defect, which by the late Republic had made a complete mockery of the Roman electoral system.)

And it worked—the secret ballot has pretty much destroyed the market for votes, because who will pay you for something without any ability to verify that you complied with the terms of the deal??

I was thinking about this because of a most interesting recent case out of the federal district court in New Hampshire, invalidating a New Hampshire statute that prohibited "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 … with the intention of letting it be known how he or she is about to vote or how he or she has voted."

You can see the point of the law—if such photos are allowed, we're helping to feed the very market for votes that we have so successfully managed to control.

But in a very thoughtful and very persuasive opinion, Judge Paul Barbadoro held that the statute could not survive the "strict scutiny" required by the First Amendment for "content-based" prohibitions of this kind.

First, the state is not pursuing a "compelling state interest." Preventing voting fraud is, of course, a most compelling interest—"in the abstract," as Barbadoro put it. But there was really no evidence that it was taking place:

The government ordinarily must point to sufficient evidence in the law's legislative history or in the record before the court to show that the problem exists. "Anecdote and supposition" cannot substitute for evidence of a real problem. Mere speculation of harm does not constitute a compelling state interest. In the present case, neither the legislative history nor the evidentiary record compiled by the Secretary in defense of this action provide any support for the view that the state has an actual or imminent problem with images of completed ballots being used to facilitate either vote buying or voter coercion.

And even if the state could demonstrate that New Hampshire has an actual problem with either vote-buying or voter coercion and that allowing voters to display images of their ballots would exacerbate the problem, the law in question is not "narrowly tailored" to promote that interest:

[The statute] is vastly overinclusive and is therefore not narrowly tailored to further a compelling interest… [T]he means that the state has chosen to address the issue will, for the most part, punish only the innocent while leaving actual participants in vote buying and voter coercion schemes unscathed. As [the identity of those] who are now under investigation reveal, the people who are most likely to be ensnared by the new law are those who wish to use images of their completed ballots to make a political point. The few who might be drawn into efforts to buy or coerce their votes are highly unlikely to broadcast their intentions via social media given the criminal nature of the schemes in which they have become involved. As a result, investigative efforts will naturally tend to focus on the lowhanging fruit of innocent voters who simply want the world to know how they have voted for entirely legitimate reasons.

I think he's absolutely right about that. If the state wants to prohibit distributing these photos in connection with some otherwise illegitimate scheme, it may well be able to do that constitutionally; but here it's just sweeping too much protected expression into the prohibition for no good reason.

A good win for Amendment #1.

[UPDATE: Prof. Rick Hasen, over on, has a very different take on this case, which you can read here]