Experts Can't Agree On Whether Voting-Booth Selfies Will Destroy Democracy

A recent court ruling out of New Hampshire has ignited a debate on whether laws banning ballot selfies violate the Constitution.
ASSOCIATED PRESS

A recent ruling out of New Hampshire has election-law experts wondering out loud whether the ballot selfie is the next great threat to American democracy.

The ruling, by U.S. District Judge Paul Barbadoro, struck down as unconstitutional a New Hampshire statute that penalized taking a selfie in a polling booth.

The case arose when three Republican voters — one of whom wrote-in his dead dog as a U.S. Senate candidate because he was unhappy with the other contenders — got word they were being investigated for posting selfies with their ballot choices on social media.

So with the help of the American Civil Liberties Union of New Hampshire, they challenged the law as a violation of their freedom of speech and won.

Judge Barbadoro said the law "cannot stand to the extent that it bars voters from disclosing images of their completed ballots."

In a Reuters op-ed, one legal expert sounded the alarm.

"That might seem like a victory for the American Way," wrote UCI Law Professor Richard Hasen, whose specialty is voting rights. "But the judge made a huge mistake because without the ballot-selfie ban, we could see the reemergence of the buying and selling of votes — and even potential coercion from employers, union bosses and others."

Both Hasen and Barbadoro recognized that history raised red flags about the problems of vote-buying and voter coercion, which the New Hampshire law was designed to prevent.

But the judge didn't think things were so bad today that an outright ban on the selfie would do the work. He said "the record does not include any evidence that either vote buying or voter coercion has occurred in New Hampshire since the late 1800s."

Michael McDonald, a professor at the University of Florida who studies election methodologies, shared Barbadoro's skepticism about the link between selfie bans and vote-buying.

"As a way of stealing an election, this doesn't seem a very effective method," he told The Washington Post, adding that claims that someone is paying others to vote a certain way "would be easily detected."

Erwin Chemerinsky, the dean of UCI Law and Hasen's boss, disagreed as well and considered the selfie ban "a content-based restriction on speech" that should be held to a high constitutional standard, according to The New York Times.

As for New Hampshire voters, it seems enough of them were outraged by the ballot-selfie ban to band together and start a revolution against it, with its own Facebook group and everything.

New Hampshire has said it plans to appeal the ruling.

In the lead-up to the 2014 election, The Huffington Post surveyed the states that had laws or policies prohibiting or limiting the pictures one may take near or around a voting booth.

Since laws change all the time and the Supreme Court won't be ruling on the issue any time soon, consult with local election officials before you Instagram.

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