The New Hampshire Civil Liberties Union and three voters are challenging a law that prohibits posting photos of ballots on social media. The suit argues that the law restrains freedom of speech.
The law, which was passed in June, makes it illegal for voters to take “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” or writing in a candidate that places a “distinguishing mark” on their ballot. The penalty for doing so is a fine of $1000.
Two of the plaintiffs, both of whom are running as Republican state representatives, were investigated for posting their completed ballots on Facebook, while the third, Andrew Langlois, wrote in the name of his deceased dog for his choice of Senate candidate in the Republican primary and posted a photo of it. None of the plaintiffs have been fined yet. According to the lawsuit, Langlois did not know that posting a photo of his ballot was illegal until he was told that he was being investigated; he said that he had posted the photo to make a statement about “his frustration with his Republican choices for U.S. Senate.” The other two, however, posted the photos in order to protest the current law.
The goal of the bill, which was sponsored by Rep. Timothy Horrigan (D-Durham), was to update pre-existing laws on sharing votes, which aim to prevent vote buying. According to the lawsuit, supporters of the bill were unable to give examples of such vote buying occurring since the 1880s.
New Hampshire has relatively strict voting laws. Voters must present ID, such as a government-issued photo ID or an ID badge, or fill out an affidavit. New Hampshire does not have an early voting period, and voters who wish to vote absentee must provide a reason, such as being unable to vote in-person because of a physical disability or work-related commitments.
New Hampshire is not alone in this laws preventing people from publicly displaying how they voted. Fox News host Sean Hannity discovered in the last election after tweeting his ballot that he had inadvertently broken New York law. As of 2012, only six states did not explicitly prohibit voters from posting photos of their ballots; 35 states explicitly forbid it, while the rest and the District of Columbia have unclear laws on the matter. Both Hawaii and Michigan have laws that would void ballots that were posted, while in Maine it is legal for a person to post their own ballot but not someone else’s. In Ohio, a state representative has said that he plans to introduce legislation to overturn a state law that makes posting ballots online a felony.