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A Picture's Worth a Thousand Words: Why Ballot Selfies Are Protected by the First Amendment

18 SMU Sci. & Tech. L. Rev. 247 (2015)

16 Pages Posted: 19 Dec 2015 Last revised: 4 Jan 2017

Daniel A. Horwitz

Independent

Date Written: December 16, 2015

Abstract

On August 11, 2015, U.S. District Court Judge Paul Barbadoro held in Rideout v. Gardner that a New Hampshire law prohibiting the digital distribution of photos of a marked ballot – popularly known as a “ballot selfie” – was “invalid because it is a content-based restriction on speech that cannot survive strict scrutiny.” Immediately thereafter, Judge Barbadoro’s opinion generated substantial criticism from prominent election law scholars – most notably Richard Hasen – who argued that permitting “ballot selfies” would open up the electoral process to vote buying and voter coercion.

This Article responds to such criticism, arguing that ballot selfie bans are unconstitutional because they represent a content-based restriction on speech and fail to satisfy strict scrutiny. Three reasons are provided to support this view. First, ballot selfie bans unnecessarily restrict a substantial amount of protected speech while simultaneously doing nothing to prevent far simpler forms of vote buying. Second, the “compelling” nature of the Government’s interest in enacting broad-based laws to guard against vote buying is subject to considerable doubt, because vote buying is statistically non-existent even in jurisdictions where it is theoretically easy to accomplish. Third, because in most cases voters have the ability to change their vote even after taking a ballot selfie, ballot selfies are a useless tool for promoting vote buying anyway – rendering the entire premise behind such laws baseless.

Keywords: Ballot Selfie, Ballot Selfies, Voter Fraud, First Amendment, Strict Scrutiny

Suggested Citation

Horwitz, Daniel A., A Picture's Worth a Thousand Words: Why Ballot Selfies Are Protected by the First Amendment (December 16, 2015). 18 SMU Sci. & Tech. L. Rev. 247 (2015). Available at SSRN: https://ssrn.com/abstract=2704630

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