The Legality of Ballot Selfies

Nothing is more prevalent and controversial in our current society than the upcoming Presidential election. Everyday the news cycle is fraught with talk of policies, appearances and controversies. However, one aspect of this provocative topic that many people do not immediately think about is the influence of modern technology on the election cycle. With the increased accessibility of new technology and the desire to share all aspects of our lives with others, many technological issues have arisen in the political and legal world. Specifically, ballot selfies and public postings of ballots on social media have caused several legal issues that are currently being addressed.

For example, in 2015 a lawsuit was brought against the state of New Hampshire by three citizens who were convicted under a state statute for taking photographs of their marked ballots and publishing them on social media.1 The specific state statute made it unlawful for a person to allow his or her ballot to be seen and prohibited a person from “taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media . . .”2 The Plaintiffs argued that their first amendment rights to freedom of expression were violated by this statute and that it was thus unconstitutional.3

The First Amendment allows for freedom of speech and expression.4 In the case above, the expression at issue was the sharing of the photos. The Plaintiffs argued that posting their photos was a form of political expression that should be protected.5 They also argued that any restriction on this expression would be a content-based restriction, meaning that the expression was restricted purely based on its content, and was thus inherently unfair as content based restrictions are subject to strict scrutiny.6 Strict scrutiny is a standard of review which “requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest,” which Plaintiffs argued could not be proven through the New Hampshire statute.7 On the other hand, the Defendants maintained that posting photos of ballots on social media would ultimately amount to voter coercion or selling of votes, and would eliminate the impartial aspect of the voter process.8 Ultimately, the Judge declared the New Hampshire law invalid for the reasons cited by the Plaintiffs, thereby allowing ballot selfies legally in the state of New Hampshire.9

Unfortunately, this case is not the end of the debate over ballot selfies and social media posts. In fact, the case is currently being analyzed by the First Circuit Court of Appeals.10 The issue of ballot selfies is prevalent throughout the nation, and more than half of the states have similar laws to that of New Hampshire.11 Further demonstrating the importance of this issue, various social media sites have joined in as amicus curiae in the argument in favor of allowing the photos as a First Amendment right.12 This issue could have serious implications on the voting process, as well as on First Amendment restrictions. The New Hampshire case demonstrates that something as innocent as ballot selfies, though seemingly unimportant, can have a large impact on our law and society.

  1. Rideout v. Gardner, 123 F. Supp. 3d 218, 221 (D.N.H. 2015).
  2. Id.
  3. Id. at 228.
  4. U.S. Const. amend. I.
  5. Rideout, 123 F. Supp. at 228.
  6. Id. at 229.
  7. Id. at 228.
  8. Id. at 231.
  9. Id. at 235.
  10. Pete Williams, Appeals Court Considers Ban on Voter Selfies, NBC News (Sept. 13, 2016, 3:47 PM), http://www.nbcnews.com/news/us-news/appeals-court-consider-ban-voter-selfies-n646866.
  11. Id.
  12. Daniel Victor, Selfies in the Voting Booth? Snapchat Fights for the Right, N.Y. Times (April 26, 2016), http://www.nytimes.com/2016/04/27/us/politics/voting-booth-snapchat-selfies.html

Author: Jaimee Glinn

Jaimee Glinn graduated from Binghamton University in 2015 with a B.A. in Philosophy, Politics and Law. At Rutgers Law School, she is Vice President of the Women's Law Forum as well as Vice President of Marketing for the Intellectual Property Law Society. Outside of law school, Jaimee enjoys running and reading fiction novels.