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Earlier this month, a federal court in New Hampshire struck down a 2014 enacted New Hampshire law that prohibited voters from taking and disclosing photographs of their completed ballots to let others know how they voted. The law was challenged on the grounds it infringed upon the plaintiffs’ First Amendment rights.  The Judge agreed and declared the law invalid.

Background

For many years, it was unlawful in New Hampshire for a voter to show his ballot to someone to disclose how he or she voted.  In 2014, the New Hampshire legislature amended this law to extend “this prohibition to include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.”

The plaintiffs challenged the disclosure prohibition, arguing this distribution usually happens far away from the polling place and is an important and effective means of political expression which is protected by the First Amendment.

U.S. District Court Judge Paul Barbadoro agreed and declared the law invalid.  He concluded the new law was a content-based restriction; thus, it was subject to strict scrutiny meaning the Government was required to prove that the restriction furthered a compelling interest and was narrowly tailored to achieve that interest.

The proponents of the amendment argued the bill was necessary to protect voters from being intimidated or coerced into proving they voted a particular way.  However, Judge Barbadoro held there had been no evidence or testimony demonstrating New Hampshire had a problem with vote buying or coercion and if it did, the law should have been tailored to meet that more specifically.

Several commentators have applauded the decision claiming that free speech such as pictures of completed ballots must be allowed until it is proven there is actual harm.

South Carolina

Section 7-25-100 of the South Carolina Code states that “it is unlawful in any election for a voter to: 1) allow his ballot to be seen by a person, except as provided by law; 2) take, remove, or attempt to take or remove a ballot from the polling place before the close of the polls . . . .”  South Carolina clearly has a history of valuing the secret ballot.  Section 7-13-130 declares, “the right to vote of each person so entitled and the secrecy of the ballot shall be preserved at all times.”  Further, other statutory provisions demand poll managers preserve the sanctity of the secret ballot. See §§ 7-13-771, 7-13-1380, and 7-13-1830.

South Carolina also provides other requirements on the voting process. Specifically, a voter cannot stay in the voting place longer than five minutes (§ 7-13-760), nor can an unauthorized person get close to the voting booth (§ 7-13-770). “The law does allow individuals to have assistance by others in the voting booth if they are disabled.”  (§ 7-13-770)