U.S. Supreme Court Declines to Review N.H. 'Ballot Selfie' Law

Apr 3, 2017

New Hampshire residents can continue to safely snap photos inside the voting booth, after the U.S. Supreme Court declined to take up the state’s request for an appeal in a years-long battle over so-called “ballot selfies.”

Still, even after multiple judges have ruled the ban unconstitutional, Secretary of State Bill Gardner says he’s still not giving up on finding a way to wall off the practice. 

Gardner suggested state officials may try other avenues to restricting the use of photography within the voting area, though he wasn’t specific on what form that might take.

“There are other ways to deal with this, and there are people across the country that are addressing this,” Gardner said Monday.

Since the law banning “ballot selfies” was first challenged, Gardner has argued that preventing photography inside the ballot booth is a necessary measure to prevent voter intimidation.

“Anything that chips away at the secret ballot and the longstanding tradition of free and fair elections will be harmful to those among us who have trouble saying no and easily succumb to peer pressure,” Gardner said Monday, after the Supreme Court formally declined to review the law.“The court doesn’t allow cameras because they say it’s a sanctuary, in a courtroom. Well, for a number of people, the privacy of the ballot booth is their sanctuary.”

But New Hampshire ACLU Legal Director Gilles Bissonnette, who was part of the legal team representing the residents challenging a 2014 law banning ballot selfies, called Monday’s news from the Supreme Court a victory for free speech.

“If the rationale for such a speech restriction is to try to prevent vote bribery or voter coercion, then the state should investigate and try to prosecute vote bribery and voter coercion,” Bissonnette said, “rather than enact a law that sweeps within its scope protected speech, innocent speech, political speech that has nothing to do with vote bribery and voter coercion.”

Last fall, a federal appeals court affirmed lower court rulings calling the law unconstitutional. In part, the court noted at the time, "the prohibition on ballot selfies reaches and curtails the speech rights of all voters, not just those motivated to cast a particular vote for illegal reasons." 

"New Hampshire may not impose such a broad restriction on speech by banning ballot selfies in order to combat an unsubstantiated and hypothetical danger," the order read. "We repeat the old adage: 'a picture is worth a thousand words.' " Now that the state’s case has been declined by the nation’s highest court, Bissonnette says he hopes lawmakers will act to amend the law to reflect those rulings. The ballot selfie ban technically remains on the books in New Hampshire, though it has not been enforced for several years.