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N.H. Rev. Stat. Ann. § 659:35, I, which prohibited New Hampshire voters from photographing their marked ballots and publicizing such photographs, was facially unconstitutional even applying only intermediate scrutiny. There was a substantial mismatch between New Hampshire's objectives and the ballot-selfie prohibition in § 659:35, I. Thus, New Hampshire may not restrict speech by banning ballot selfies to combat an unsubstantiated and hypothetical danger.
In the late 19th century, political parties, unions, and other organizations had the power to print their ballots. Such practice allowed the ballot-printing organizations to observe how individuals voted at the polls, which in turn created a coercive environment. During this period, the State of New Hampshire undertook a series of reforms to combat widespread vote buying and voter intimidation. In 1891, the State passed legislation requiring the Secretary of State to prepare ballots for state and federal elections. The State then passed a statute to forbid any voter from allowing his ballot to be seen by any person, intending to let it be known how he was about to vote. Said provision had been codified in relevant part in section 659:35, I. But mentioned an exception that allowed voters who need assistance marking a ballot to receive such assistance. In 2014, the legislature revised the provision. The original version of the bill amending the provision provided that no voter shall take a photograph or a digital image of his or her marked ballot. Later, that bill was signed into law. The legislative history of the bill did not contain any corroborated evidence of vote buying or voter coercion in the state during the twentieth and twenty-first centuries. Plaintiffs Leon Rideout, Andrew Langlois, and Brandon Ross filed suit under 42 U.S.C. § 1983 seeking a declaration to invalidate section 659:35, I as unconstitutional on its face and as applied, and an injunction forbidding New Hampshire from enforcing the statute. Plaintiffs were under investigation for alleged violations of section 659:35, I, which arose from their publication of ballot selfies after voting in the September 2014 Republican primary election. The district court determined that section 659:35, I was a content-based restriction on speech because it required regulators to examine the content of the speech to determine whether it included impermissible subject matter. The district court applied strict scrutiny, which required the Government to prove that the restriction furthers a compelling interest and was narrowly tailored to achieve that interest. Thus, defendant State Secretary William M. Gardner, asserted the prevention of vote buying and voter coercion as the compelling interests to justify the restriction. The district court found that although those two were compelling in the abstract, neither the legislative history nor the evidentiary record compiled by the defendant provided 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. The court further found that the statute was not narrowly tailored. Moreover, the court observed that defendant failed to demonstrate why narrower alternatives would not advance the purported state interests. Hence, the district court held the statute to be unconstitutional on its face and granted declaratory relief to the plaintiffs.
Was the statute in question which prohibited the voters from photographing their marked ballots and publicizing such photographs unconstitutional on its face?
The court affirmed the judgment. The court held that revised N.H. Rev. Stat. Ann. § 659:35, I, which prohibited the voters from photographing their marked ballots and publicizing such photographs, was facially unconstitutional even applying only intermediate scrutiny. The court ruled that although the defendant argued that the statute was justified as a prophylactic measure to prevent new technology from facilitating future vote buying and voter coercion, the statute's purposes cannot justify the restrictions it imposed on speech. The court found a substantial mismatch between the state’s objectives and the ballot-selfie prohibition in § 659:35, I. Lastly, the court concluded that the state may not impose such a broad restriction on speech by banning ballot selfies to combat an unsubstantiated and hypothetical danger.