Late last month, the First Circuit Court of Appeals upheld a lower court decision finding that a New Hampshire law prohibiting digital photography of completed election ballots violated the First Amendment.  In the case of Rideout v. Gardner, the court found that the law was not narrowly tailored to a significant governmental interest, and therefore failed intermediate scrutiny review.

The New Hampshire law in question was commonly referred to as the “ballot selfie” law, since it prohibited individuals from taking cell phone photographs of themselves with their completed ballots.  The law was a 21st century update of an earlier state law dating back to the late 1800s that prohibited voters from showing their completed ballots to other voters.  The law was intended to prevent coercion at the polls.  The plaintiffs in the case were charged with violations of the updated law.

Last year, the federal district court in New Hampshire found that the ballot selfie law was unconstitutional.  The district court held that the law was content based—it prohibited only photography and the distribution thereof relating to ballots—and further found that the state had failed to demonstrate that the law actually served a compelling interest, given the scant legislative history of the law and lack of evidence that ballot selfies actually coerced voters.

On appeal, the First Circuit determined that it didn’t even need to inquire into whether the law was content based.  The appeals court simply found that the law didn’t meet the lower intermediate scrutiny analysis required for content neutral laws.  Like the district court, the appellate court observed that the state had provided little evidence that voter coercion was a problem in New Hampshire, and that the state failed to establish that a law preventing the taking and distribution of ballot selfies would actually resolve any coercion problems that existed.  As the court stated, “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. Indeed, Secretary Gardner has admitted that New Hampshire has not received any complaints of vote buying or voter intimidation since at least 1976, nor has he pointed to any such incidents since the nineteenth century.”

Given that the First Circuit’s decision comes just a month from the hotly contested 2016 presidential election, we suspect that some New Hampshire residents might be taking ballot selfies in the near future.

Rideout v. Gardner, ___ F.3d ____, 2016 WL 5403593 (1st Cir. Sep. 28, 2016).