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"Like burning down the house to roast a pig"

Rideout's challenge to ballot selfie ban wins at U.S. Appeals Court

October 05, 2016
BOSTON — In September 2014, Leon Rideout, a resident of Lancaster and member of the State House of Representatives, took a picture of his marked ballot and posted it online. The act, which he made to make a statement about the importance of free speech, led to a legal challenge of the state's ban on a "ballot selfie."

Last week, the U.S. First Circuit Court of Appeals in Boston sided with Rideout and two other plaintiffs, calling the state's ban on posting of ballot selfies as a violation of the First Amendment. The NH Chapter of the American Civil Liberties Union was involved in the litigation on Rideout's behalf.

The state law was effective on Sept. 1, 2014, shortly before Rideout protested the statute through posting his ballot selfie. The restriction on ballot selfies was defended on the grounds that it could lower the risk of voter intimidation and the buying of votes.

Like the U.S. District Court in a prior decision on the issue, the Appeals Court disagreed with the state's rationale, citing a lack of evidence to justify such a restriction on speech.

"The legislative history of the bill does not contain any corroborated evidence of vote buying or voter coercion in New Hampshire during the twentieth and twenty-first centuries," the court wrote.

When examining questions touching on the First Amendment right of free speech, courts require such restrictions to be narrowly tailored so as to serve a specific purpose justifying the restriction. With such a principle in mind, the appeals court deemed New Hampshire's ban on ballot selfies "like burning down the house to roast a pig," even if evidence existed of the vote buying concern.

"The restriction affects voters who are engaged in core political speech, an area highly protected by the First Amendment," the court stated last week. Also, the court noted that zero complaints of vote buying and voter intimidation were presented to New Hampshire authorities since 1976.

Additionally, the court wrote, "Ballot selfies have taken on a special communicative value: they both express support for a candidate and communicate that the voter has in fact given his or her vote to that candidate."

"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 court concluded.

After the ruling, Rideout made multiple postings about the case on his Facebook page. "I want to thank Gilles Bissonette of the ACLU for his hard work on the legal challenge to the ban on ballot selfies and the State Of NH's infringement of free speech."

The state could make the determination to appeal last week's ruling to the U.S. Supreme Court.

Martin Lord Osman
Salmon Press
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