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Appeals court: Ballot selfie ban unconstitutional

A federal appeals court has ruled that New Hampshire's ban on voters taking and publishing photos of their voted ballots is unconstitutional.

The Boston-based 1st Circuit Court of Appeals on Wednesday upheld a lower court ruling that the law, revised in 2014, ran afoul of the First Amendment because lawmakers could not show that it was tailored to the purported threat of vote-buying and voter intimidation. The unanimous, three-judge appeals court panel also questioned how serious and present a threat that was.

“Digital photography, the internet, and social media are not unknown quantities – they have been ubiquitous for several election cycles, without being shown to have the effect of furthering vote buying or voter intimidation. As the plaintiffs note, ‘small cameras’ and digital photography ‘have been in use for at least 15 years,’ and New Hampshire cannot identify a single complaint of vote buying or intimidation related to a voter's publishing a photograph of a marked ballot during that period,” Judge Sandra Lynch wrote, in an opinion joined by Judges Ojetta Thompson and Kermit Lipez.

“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,” Lynch added. “New Hampshire does so in the name of trying to prevent a much smaller hypothetical pool of voters who, New Hampshire fears, may try to sell their votes. New Hampshire admits that no such vote-selling market has in fact emerged. And to the extent that the State hypothesizes this will make intimidation of some voters more likely, that is no reason to infringe on the rights of all voters.”

“The ballot-selfie prohibition is like ‘burn[ing down] the house to roast the pig,’” the court's opinion added, borrowing language from a 1957 Supreme Court ruling.

The legal challenge to the anti-selfie law was brought by three New Hampshire voters who defied the ban in connection with a September 2014 primary. Social media firm Snapchat, the Reporter's Committee for Freedom of the Press and others weighed in in favor of the challengers.

A lawyer in the New Hampshire attorney general's office, Stephen LaBonte, said he'd just received the opinion Wednesday afternoon and had no immediate comment. “We're still looking at it,” he said.

Lynch and Lipez were appointed by President Bill Clinton. Thompson is an appointee of President Barack Obama.