If you check your Facebook feed on this Election Day, there’s a chance you may see a friend post a “ballot selfie” - a photo taken in the voting booth of a completed ballot.
If that friend lives in New Hampshire, posting that photo might not be such a great idea. Such photos are illegal in this state – at least for now.
And to start, let’s give you credit for coining the term “ballot selfie.” It could have been much worse.
Oh, I don't know if it could be a whole lot worse.
Why is this illegal to post a ballot selfie - what's the reasoning behind the law?
I talked to Bill Gardner, who's the Secretary of State and who knows all things electioneering in New Hampshire. He's been around for decades. And he explained that it dates back well over a century in the US, to concerns about vote buying and to a certain extent vote coercion. In the old days there'd be stories about people showing up and Tammany Hall would buy their vote with a drink of liquor or something.
But the key to buying a vote is, you have to be sure the person voted the way they said they would. And that means you have to be able to see their ballot. So there have been laws in many states - this is not just New Hampshire - for a long time, saying that you can't mark a ballot so that after the fact you could show definitely that it was your ballot. So you can't, like, put your initials on it, and you also can't take a picture of it.
The "taking a picture of it" hasn't been a big deal until lately. Of course, we all have cameras in our pockets with our cellphones, and so the whole issue has come up again.
I said at the start that ballot selfies are illegal for now – because there’s a lawsuit from the New Hampshire Civil Liberties Union and several residents. And they're arguing this as a First Amendment expression issue, that if they want to take pictures of their ballots and post them to the world, who has the right to stop them?
That's a pretty potent argument - whenever I write about this online, virtually all the comments that get emailed or attached to a photo or call in to us, pretty much everyone says that. It's my ballot, I can take a picture of my lunch, I can take a picture of myself, why can't I take a picture of my ballot? It's political speech of a very strong form, to post it online and say, look who I voted for. That's a big deal.
The counter-argument is a little more subtle. By forbidding anybody to confirm how they voted, you deny all possibility that we can be coerced or threatened into voting. If it's illegal for me to show you definitely that I voted for, for example, Vermin Supreme, which is the person you might want me to vote for in the next presidential primary - if I cannot show you a picture of my ballot, showing that yes, I did vote for Vermin Supreme, you're not going to pay me to Vermin Supreme, or you're not going to beat me up if I don't vote for Vermin Supreme.
Or fire an employee, possibly.
Right. There could be a lot of pressure, saying, hey, let's all show our ballots, and show that we supported so-and-so, and everybody else holds up their cellphones to take pictures of their ballots. That's a very strong pressure on you to do the same thing, because if you don't, it sort of implies that you're going against the grain.
The idea of a law like this is to cut such pressure off at the knees - you can't even think about it. You can draw a picture of your ballot, you can get a sample ballot, which looks exactly like the real ballot, and fill it in, and take a picture of the sample ballot and post it. You could draw it on a bedsheet and hang it out the window of your house, or go downtown and shout out about your vote through a megaphone, if you wanted to.
You just can't post the picture of the actual ballot itself.
This is another one of those cases where new technology collides with the way we've done things over time. I guess if every other previously private part of our lives has ended up on social media, then ballots are right up there too.
Yeah, the pragmatic side of me says it really doesn't matter what the law says, people are going to be doing this. But it is an interesting debate.