New Hampshire Law Banning Ballot Selfies Struck Down As Unconstitutional
from the free-speech-or-gtfo dept
As anyone who pays attention to technology and social trends knows, selfies have been a thing for a while now, for some reason. These testaments to the massive inflation of our own egos have occasionally created pushback in a variety of forms, from the banning of selfie sticks from roughly all the places to, sigh, intrusions into intellectual property matters as they relate to damn dirty monkeys. And, in a bit of news that missed my radar for some reason, last year New Hampshire updated its laws prohibiting the photography of voting booths and records to include criminalizing individual voters taking so-called "ballot selfies", in which they proudly tweet out a picture of a completed ballot.
The original laws against this type of thing, most of which were codified in the 1970s, typically were put in place to stave off influencing the public in voting matters by a show of votes and warding off the possibility of paid-for votes being carried out with the photograph being used to confirm the vote was completed. These goals, while seemingly laudible, are misguided for any number of reasons, including the limitation on expression for fear of a might-be-possible-future-crime and the fact that all manner of people discuss their voting habits all the freaking time anyway, such that a photograph doesn't really add much to the discussion. When my friend tells me he writes in Bear Grylls for President every four years because, hey, that dude drinks his own urine, imagine what crazy shit he'll do as President, I don't shout "Pics or it didn't happen!" at him.
And, in a moment of legal beauty, a federal judge in New Hampshire agrees and has declared ballot selfies to be free and protected speech.
In his ruling, U.S. District Court Judge Paul Barbadoro said it's speculation to think people will be coerced into selling votes if they can post the image online. During arguments in June, lawyers for the state acknowledged there are no known cases of vote-buying or coercion in New Hampshire.The ACLU argued successfully in favor of three voters who had been investigated after posting pictures of completed ballots on social media. Included amongst those three individuals was one gentleman whose photo showed that he had written in his own dog's name because he hated all the legitimate candidates. And before anyone in our government runs off to start investigating whether Fido in fact bribed this man to vote this way, you should know that Fido was dead at the time. Dead dogs go to heaven, they don't commit federal election fraud. Cats might, pending my further study of the possibility.
"You think people are going to post a photo on Facebook?" he said [during oral arguments]. "'I'm a proud seller of my vote! I just sold my vote for $25!' At some level, you have to use common sense."
In any case, the point is that political expression is perhaps the most sacred form of free speech in our republic. A law outlawing a form of that speech in favor of concern for something that hasn't ever happened probably isn't the best way to govern.
"Today's decision is a victory for the First Amendment," Gilles Bissonnette, legal director of the ACLU-NH, said in a prepared statement. "Political speech is essential to a functioning democracy. The First Amendment does not allow the state to, as it was doing here, broadly ban innocent political speech with the hope that such a sweeping ban would address underlying criminal conduct."Indeed. Selfies are many things, and not all of them good. But they are certainly speech.
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Filed Under: ballots, first amendment, new hampshire, selfies
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So the attorneys for the people that have been voted into office acknowledged that there are "no known cases of vote-buying or coercion"? While I am happy with the outcome of this case, I'm not entirely sure these were the right people to ask this question.
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Not nearly as bad as everyone on capitol hill - and N.H. Gov.
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There is a problem here
"Whatever is not forbidden is compulsory" (T H White - later adopted by Murray Gell-Mann).
The rules of secret ballots were originally invented to counteract voter compulsion/bullying by landlords, employers etc.
If you can prove that you voted in a certain way then it is inevitable that bad people will find ways to force anyone over whom they have influence to do so.
Unfortunately this would seem to put a limit on free expression unless the voting mechanism can be designed in such a way that you can take selfies in the booth - but that will never amount to conclusive proof of how you voted.
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Having said that I'm having some trouble coming up with such a solution!
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I have to agree with BentFranklin there...
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Cameras small enough to easily take a picture of a ballot have been around for decades. Need to be more discreet? Button cams. Heck, absentee ballots can be filled out and mailed in the presence of someone else.
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In my state at least, there's actually a little blurb at the end of the ballot asking you to go back and check whether it's been filled out correctly.
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1. If someone is engaged in voter fraud, do you think they really care about breaking the law that says "don't photograph your ballot"?
2. If someone is engaged in voter fraud, go after them for voter fraud, not photographing a ballot.
3. If someone is engaged in voter fraud, it's unlikely they're then posting about it on Facebook.
The law, as structured, is ridiculous. It's a weak attempt to go after something that has perfectly reasonable uses (and is a form of First Amendment protected expression) to stop the possibility of a totally different crime.
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Re: I have to agree with BentFranklin there...
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Re: I have to agree with BentFranklin there...
If a person can have a spoiled ballot replaced, the photo only proves that filled in a ballot in a particular fashion, and not what they put in the ballot box. Similarly, the could spoil the ballot after they photographed it.
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It isn't as simple as that.
Consider the situation where a landord wishes to coerce his tenants into voting a certain way. HE may not be bothered about breaking the law but THEY are in a much stronger position to resist his pressure if he is asking them to do something that is illegal and enforced in the polling station.
2. If someone is engaged in voter fraud, go after them for voter fraud, not photographing a ballot.
Photographing a ballot is teh evidence of fraud so the two are inseparable.
3. If someone is engaged in voter fraud, it's unlikely they're then posting about it on Facebook.
Well if it is legal to do that then it makes it much easier for our coecive landlord to check up on his tenants.
I'm sorry but you aren't addressing the kind of voter fraud that secret ballots were invented to deal with.
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Re: Re: I have to agree with BentFranklin there...
By then it will be too late - because the fraudsters will be in office!
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Cats are a byproduct of the devil fighting an angel. Cute as heaven, smart as hell.
I have two of those little bastards and I lov them.
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I agree but tell that to the parking enforcement officer whose warden took a picture of my car parked in a "residents only" space.
Those with technical savvy are well aware that photographs don't mean much these days - but the general population (esp those whose votes are likely to be coerced in this way) doesn't yet have that level of sophistication.
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Re: There is a problem here
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True - but I'm not sure that this is enough to stop a determined coercer - I've been trying to think of some modifications to the polling station procedure that would make these mechanisms watertight - nut so far I can always think of a get around.
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Re: Re: There is a problem here
The type of person likely to be coerced by a landlord or employer doesn't know how to use photoshop - esp not well enough to fool someone who zooms in.
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Re: #14 - Richard - Re: Re:
2. Voter fraud is the coercion, not the vote. The vote may be invalidated when fraud is proven, but the picture "proves" nothing. See #1, immediately above.
3. Huh, what? Too many possible antecedents for a coherent argument to be found.
What does "that" refer to:
The act of photographing a ballot?
Voting?
Voter fraud?
Showing someone a photograph?
Showing someone a photograph of a ballot?
Showing someone a fraudulent photograph of a legitimate ballot?
Showing someone a legitimate photograph of a fraudulent ballot?
Posting on Facebook?
Posting political views on Facebook?
Posting a photograph purporting to be of the ballot you submitted on Facebook?
Please clarify what you meant to say. Thanks.
And a link to your source(s) for the kind(s) of voter fraud secret ballots WERE invented to deal with would also be appreciated.
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On the other hand people fought very long and hard to establish the secrecy of the ballot. That secrecy is worth fighting for.
This would seem to be a very silly judgment from a man far more intent on reading the letter of a 200 year old law rather than its intent and spirit.
However long reading of these pages has convinced me that intelligence and insight are rare commodities in the US judiciary, and I'm sad to say I suspect the same applies to judges all over the World.
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Re: There is a problem here
I completely agree. Laws that prevent one from proving who they voted for are good laws that exist for good reason. They prevent vote coercion.
While I'm not sure if this is true someone told me that Chile (IIRC), at one time, had open elections where everyone knew everyone else's vote. One day they changed to anonymous elections and there were studies showing that voter habits changed once that happened. I can't really find it (didn't look that hard though I assume something like that shouldn't be that hard to find if it were true?).
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Re: #17 - Richard - Re: Re:
The discussion is about a photograph of a completed ballot in a voting booth before the ballot has been dropped in the slot, which (as many commenters have previously noted), does not prove or disprove any subsequent action did or did not occur.
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Re: Re: Re: I have to agree with BentFranklin there...
1) The fraudsters are already in office
2) The fraudsters have far more efficient way to rig elections such as gerrymandering, voter disenfranchisement, and other dirty tricks.
Don't treat the papercut on your finger when you've got a gash spurting blood from an artery.
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Really? How so? He is asking them to do something illegal in coercing their vote already.
Photographing a ballot is teh evidence of fraud so the two are inseparable.
Bullshit. There are plenty of non-fraud reasons why someone may want to photograph their ballot. The two are EASILY separable.
Well if it is legal to do that then it makes it much easier for our coecive landlord to check up on his tenants.
Yes, but there are lots of things we could make it "easier" to do by taking away free expression rights. And we don't. For a good reason.
I'm sorry but you aren't addressing the kind of voter fraud that secret ballots were invented to deal with.
Again, you can address voter fraud without outlawing all photographs.
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Some people *want* to advertise who they voted for. That's *absolutely* expressive.
Besides that whole line is disgusting. It can easily be changed into "I can see no legitimate reason for thinking that expressing dissent from the ruling party is expressive." "I can see no legitimate reason for thinking that photographing a model nude is expressive."
There may be lots of things that one person doesn't think is expressive, but lots of others do. And, in fact, it's rather clear that plenty of people -- including those involved in THIS CASE -- felt that photographing their ballot was expressive.
On the other hand people fought very long and hard to establish the secrecy of the ballot. That secrecy is worth fighting for.
There is nothing in this ruling that takes away the right to a secret ballot. Nothing.
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Short version: The voter needs an app to take the pic, and then very quickly photoshop it.
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I don't see any point in papering the problem over with a somewhat silly law that doesn't actually fix things. At best, this New Hampshire law may perhaps reduce peer-pressure effects. But those conjectured peer-pressure effects are not at the heart of the bribery and coercion problem.
How do you stop someone from taking a picture and then disclosing it only to the briber or the coercer? Given today's technology, that's awfully difficult. Therefore, instead, you need to make the picture an unreliable proof of the actual vote.
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And nothing about this threatens the secrecy of the ballot. Your vote remains just as secret if selfies are allowed: exactly as secret as you want it to be.
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Which is why I said that a technical solution was preferable.
At present I can't think of such a solution - the best I can come up with is that you vote for a candidate by placing an odd number of X's in his box and an even number in all other candidates boxes. That way you can vote for one candidate, take a photo and then change you vote by adding second X in his box and then vote for someone else.
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Secrecy already dead
I expect that there are households where a dominant family member collects all the ballots, fills them in, has the "voter" sign them and then mails them back.
That's why I oppose postal ballots except for those people who would have more than usual difficulty voting in person (disabled, armed forces stationed abroad, etc.).
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I wonder what Larry Lessig thinks about this subject? Do you know him well enough to ask?
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How do you prove it is non-modified?
But my point is that the general public is not that sophisticated (yet) - nor are they sophisticated enough to take your point on board either.
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Not if your landlord threatens to make you homeless unless you take the picture to prove you voted for him.
However I don't think the law is a good way to fix this - a technical solution is needed
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The act of proving how you voted by taking a photograph is MUCH easier to prove than voter coercion. You are assuming that mere questions of illegality are enough. They are not. The whole point of the secret ballot is that it SHOULD NOT BE POSSIBLE to prove how you voted. Freedom of expression is nothing to do with it either. By your argument there should be no bans on vote buying as it is an unfair trade restraint. Bollocks. The secret ballot is a matter of public policy not private choice. That is how democracy is supposed to work. If you make it legal to prove how you voted to someone else, you make it possible to force people to do this. Simple as thaqt.
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And by this comment you show that you fundamentaly misunderstand the point of the secret ballot. Voting needs to be secret IRRESPECTIVE of whether the voter wants it to be. Otherwise voters can be pressured into waiving their right to secrecy. The secrecy of the ballot is a public right, not a private choice, as voters choosing to waive secrety compromises the integrity of the ballot.
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Just put stacks of blank ballots everywhere.
Election officials were absolutely horror-strucken by that idea.
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What a monsterpiece of neonatal revelmotation! It's like I'm right in the bar spilling a brewski and watching you scribble your brains out onto the soggy napkin!
And since you can't tell: I am 1000% serious.
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In technical terms, computer scientists want ballots to have the property that they are “receipt-free.”
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But that doesn't really solve the issue of videos. So many things can go wrong here. If the person being coerced is recording themselves from the point of voting up until the point of dropping the ballot off that can act as strong evidence whom they are voting for. Even if they only record the event up until the point of finishing filling out their ballot and then stop recording, throw away the ballot, and start a new one a coercer within the station can easily notice the time gap between the time the camera went off and the time the person came out the booth.
Perhaps a solution where the voter must look into an eye piece to vote. They are shown a screen and have buttons to press to determine who they wish to vote for. Press A to vote for person A, press B for person B, etc... (or they have arrows to direct their vote to the appropriate person within the eyepiece) and for each voter the buttons to press are mixed up (ie: when I go to vote A maybe a vote for Bob but when the person next to be goes to vote A maybe a vote for Joe. If arrows are used then the list doesn't always have to be in the same order or the first selected candidate doesn't always have to be the same candidate). People can be watched and prohibited from putting their cameras within the eyepiece (pretty easy to enforce, voting can even be done in the open since only the person looking in the eyepiece knows whom they are voting for). But leaving it purely to computers, with no paper trail to submit, creates its own set of problems though there are more sophisticated cryptographic systems to address this.
The idea of allowing cameras in a voting booth just seems like a bad idea no matter how you put it.
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That's just reality today.
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The reality is, we can't stop it.
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That should not be at the expense of freedom of expression. And, as many people explained, photographs still DO NOT prove how someone voted.
Freedom of expression is nothing to do with it either.
You can say that all you want, doesn't change that it absolutely does. Some people, for whatever reason, wish to express themselves by showing how they voted. That's totally a question of freedom of expression.
By your argument there should be no bans on vote buying as it is an unfair trade restraint.
https://yourlogicalfallacyis.com/slippery-slope
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This isn't new. Here is an example of an attempt at it
Start with something simple:
https://en.wikipedia.org/wiki/ThreeBallot
https://people.csail.mit.edu/rivest/Rivest-TheThreeB allotVotingSystem.pdf (PDF)
For more see:
https://en.wikipedia.org/wiki/End-to-end_auditable_voting_systems
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Freedom of expression is supposed to prevent the impediment of an idea, argument, or criticism from being seen by others. Heck, often times people make pro and con arguments without necessarily holding a strong position on an issue or even sometimes against a position they do hold just to allow others a chance to see the other side of things and think more critically. That's the spirit of the law, to give people the opportunity to be exposed to a wider variety of viewpoints, arguments, criticisms, and facts (and yes, how one voted is a fact). Though you maybe right in the letter of the law I would say you are wrong in the spirit of the law. No one is stopping a voter from expressing an idea, argument, or criticism they are stopping them from proving whom they voted for. I don't think how someone voted should be allowed to be a proven fact of public knowledge. This is different from, say, the facts of how a police officer behaves since a police officer works for the public and their behavior on duty should always be publicly acceptable if publicly disclosed with proof.
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There is a reason you are handed a ballot paper, and can usually hand it over, and get a new ballot, and that is ensuring an individual only votes once.
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How is this not handled under existing laws, such as 18 U.S. Code § 594 and/or the ton of other existing state and local laws dealing with the same thing?
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The core problem is ensuring that an individual is only credited with one final vote.
How that's done need not remain stuck in the paradigm of ballot source control.
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That is likely to result in constituencies where with 10,000 voters, 3000 turn out to vote, and 60,00 votes are cast, giving the winner a majority of 20,000.
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I haven't been hanging out with those guys (and girls) much recently. Perhaps I should pop over and say “Hi”, and let them tell me the latest.
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Are you saying that the common practice of conducting exit polls somehow compromises the integrity of the ballot?
The choice to reveal whom you voted for is most certainly a private right and isn't prohibited whatsoever. For example, I can tell you that in '92 I voted for Ross Perot.
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You can let them “prove” it all they want, fsvo “proof” —you just have to ensure that they're able to cheat on the “proof.”
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This might seem like a simplistic question, but, WHY shouldn't that be allowed? I get that the system absolutely needs the ability to be anonymous, but why shouldn't a voter be able to disclose and/or prove how they voted, if they so desire?
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and if The They (tm) pay you $25 for your vote (which, well, why the fuck not sell it ? its essentially useless and valueless anyway), then you pay your neighbor $5 to 'shop in your 'correct' vote...
*although*, realistically, if you *are* selling your vote, prob because you (semi-rightfully) don't think it means fuckall, so why not just vote *this* Korporate Money Party pig in, rather than the *other* Korporate Money Party pig...
who cares about rich folks internecine warfare of who gets to rip us off the most, THEY BOTH WILL; at least you get $25 out of their cheating...
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Or, flipping over to another side of the spectrum, are you using “prove” in the sense that something might be proven in a courtroom, to the satisfaction of lawyers? zealous advocates or neutral judges? Or perhaps to a jury's satisfaction?
Or is it being used in a less refined and more colloquial sense? In the way that some commenters here assert that a sequence of bits, structured into bytes, might be considered a file —or a digital picture— which proves something?
“Prove” is a multivalent word.
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Fair enough. I'm using it in the context of this article, ie: snapping a selfie of your ballot. I don't think that any sort of "official validation" is a good idea at all. That would only lead to abuse.
PS: Thanks, I needed my something new to learn today and I was forced to look up "multivalent". That's a good word. I'll have to add it to my repertoire.
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So why isn't it illegal for me to tell others how I voted?
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Hypothesis Contrary to Fact
I understand the argument that showing proof of who you voted for can facilitate vote-buying, but I don't believe such an important freedom as free speech/expression should be limited based only on "what-if" arguments.
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Intellectual Property
property". If you think that term refers to something coherent, it
has already led you astray.
See http://gnu.org/philosophy/not-ipr.html for explanation.
When referring to copyright, please do so clearly, by saying
"copyright". Which is not to be identified with unrelated issues such
as patent law, trade secret law, publicity rights, etc.
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