Case Summary and Outcome

New Hampshire U.S. District Court ruled that an amended state law that makes it unlawful for voters to take and disclose photos of their voting ballots to show others how they have voted was a content-based restriction on speech that could not survive the standard of strict scrutiny. The Court ruled that the amended law was content based because it restricted speech on the basis of its subject matter. The Court dismissed the state’s defense that a ballot is a non-public forum and thus, strict scrutiny should not be applied. To the Court, the argument was flawed because the law did not restrict speech on the ballot, but the public dissemination of the ballot. To withstand strict scrutiny, a law must further a compelling interest and be narrowly tailored to achieve that interest. For an interest to be compelling, it must address an actual problem. New Hampshire does not have a problem with voter buying or other voter fraud, so  no problem exists that the law alleges to address.

Facts

In 2014, an existing law that forbid voters from disclosing their voter ballots was amended. The amended law, the New Hampshire Revised Statute § 659:35,  penalized with fines the taking and sharing of digital images or photographs of marked voter ballots and sharing those images on social media or in other public ways. The amendment was intended to curb buying votes. The Court noted that New Hampshire did not offer evidence showing that vote buying or voter coercion had not occurred in New Hampshire since the late 1800s.

The plaintiffs in this case were three of the four people the Attorney General began to investigate in an alleged violation of the statute. Leon Rideout, the first plaintiff, photographed his marked voter ballot and posted in on Facebook and Twitter. Andrew Langlois, the second plaintiff, wrote the name of his dead dog on his ballot, took a picture of it and shared in on Facebook. Brandon Ross, the third plaintiff, took a photo of his marked voter ballot and  posted in on Facebook with a phrase “Come at me bro,” as he was aware of the amended law.

Decision Overview

Honorable Judge Paul Barbadoro, of the New Hampshire U.S. District Court, wrote the memorandum and order. The Court first ruled on whether the restriction on speech was content based or content neutral. The distinction is important because, content based speech must withstand higher scrutiny. Applying precedent from Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), the Court ruled that the amended law is content based because it restricts speech on the basis of its subject matter. The Court dismissed the state’s defense that a ballot is a non-public forum and thus, strict scrutiny should not be applied. To the Court, the argument was flawed because the law did not restrict speech on the ballot, but the public dissemination of the ballot.

To withstand strict scrutiny, a law must further a compelling interest and be narrowly tailored to achieve that interest. For an interest to be compelling, it must address an actual problem. New Hampshire does not have a problem with voter buying or other voter fraud, so  no problem exists that the law alleges to address.