Sunday, September 27, 2020
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Should you take selfies in a ballot booth?

Update Sept. 2016: The The US Court of Appeals for the First Circuit ruled on the case described in this article, saying that New Hampshire’s ban on selfies in the voting booth violated the First-Amendment right to free speech. See our story.

Do you think, when you turn 18 and vote in your first election, that you’ll take a picture inside the voting booth and post it on Twitter or Facebook?

(Josh Youssef / Facebook)

Lots of people do. Or, they post a picture of their ballot, on which they write in the name of their great-grandfather for president because they don’t like any of the candidates on the ballot. Or, they’re proud to be casting a vote for a given candidate and want to share their voting behavior with their friends. Secrecy in the ballot booth, after all, is guaranteed, but if people waive that right voluntarily, there’s not much anyone can do about it.

Some states, like New Hampshire, have banned the taking of photographs in the voting booth, just as they have banned active campaigning on Election Day at the place where people cast their votes. New Hampshire and a handful of other states don’t want people to be pressured into voting for a given candidate and then have to prove they voted for that candidate.

“It’s a sacred area where you vote,” the paper quoted William M Gardner, New Hampshire’s secretary of state, a Democrat, and the chief proponent of the law that bans selfies.

So in order to avoid the possibility that someone will be pressured into voting for a specified candidate, these states have banned photographs, but this brings up a bigger question: Can they ban speech in this way? The New York Times asked that question of a few law professors, who seem to agree these laws prohibit speech based on the content of the speech and are therefore unconstitutional in that they violate the Free Speech Clause in the First Amendment.

Neither taking a selfie nor posting it on social media constitutes a desecration of any “sacred” place, to be sure. Nobody even has to know you took it.

What proponents of the 2014 law are worried about, however, is that vote buying and intimidation, rampant in the 19th century, would get out of hand. What stopped it back then was the secret ballot, because vote buyers and political bullies couldn’t verify that citizens had voted as they had been paid to do.

The problem with the New Hampshire law is the US Constitution. The government can only ban speech if it passes a test known as strict scrutiny. That means the government has to show the speech would cause harm and that banning the speech is the only way to protect some powerful government interest. The need to protect that interest must outweigh the benefits derived by the individual doing the speaking.

Think yelling “Fire!” in a crowded theater. The government can ban that speech, which is a ban based on the content of the speech, because it needs to protect people’s safety and prevent them from being trampled to death over a false alarm. The interest the government has in protecting people from harm outweighs any interest the person has in screaming “Fire!”

To apply the question to the New Hampshire selfie-banning law means we have to ask, What interest does the government have in banning the speech?

“The problem with this law is that it was an outright ban on an innocent form of communication,” the Times quoted Gilles Bissonnette, of the American Civil Liberties Union of New Hampshire, as saying. “It didn’t ban [images] involved in vote buying or intimidation. It banned all [images], including ones that carried political messages. The best way to combat vote buying and coercion is to investigate and prosecute cases of vote buying and coercion.”

Furthermore, the threat of vote buying may be hypothetical and completely imagined. Will vote buying or pressure from union bosses spring up again if people are allowed to take selfies in the voting booth? I doubt it.

In other words, very little harm—probably none at all, actually—comes from posting the selfies with a completed ballot, and in the 21st century here, we know enough to keep ourselves safe from vote buying. Just tell your union boss or other would-be vote buyer that your phone was dead. Heck, mine dies every other day now, as I conveniently forget to hook up the charger. Must be a Freudian thing.

Paul Katula is the executive editor of the Voxitatis Research Foundation, which publishes this blog. For more information, see the About page.

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