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'Ballot Selfies' Clash With The Sanctity Of Secret Polling

A man takes a "selfie" while waiting in line to cast his vote in the Wisconsin gubernatorial race in November.
Darren Hauck
Getty Images
A man takes a "selfie" while waiting in line to cast his vote in the Wisconsin gubernatorial race in November.

From Pope Francis and President Obama to the kid down the block, we have, for better or worse, become a world full of selfie-takers.

But as ubiquitous as they are, there are some places where selfies remain controversial — like the voting booth. The legal battle rages over so-called ballot selfies in the state that holds the first presidential primary.

This may be a fight of the digital age, but according to New Hampshire Secretary of State Bill Gardner, it involves a very old American ideal — the sanctity of the secret ballot.

"If somebody wants to go out and say that they voted for this person or that person they can do it. They can do it, but that ballot is sacred," he says.

Gardner has been the state's top election official since 1976. To say he views ballot selfies with suspicion would be an understatement.

He backed a change in law last year that made New Hampshire the first state to ban them explicitly.

He says allowing people to show a marked ballot — actual proof how they voted — opens the door to voter coercion, or vote buying. He insists that anything that compromises privacy in the ballot booth is a step in a very, very dark direction.

"I have a copy of the last ballot that was used when Saddam Hussein was elected, and that ballot identified who the person was. Hitler did the same thing in Austria," Gardner says.

Brandon Ross, a libertarian-leaning patent lawyer, says, "I think if the secretary of state wants to bring up Hitler, I think they should just quit now. They lose. That's absurd."

Ross is one of three plaintiffs suing in federal court to strike down New Hampshire's ballot selfie ban. He says the state's law, which can fine people $1,000 for sharing an image of their ballot, goes way too far.

"It's like a picture you can a never show without breaking the law, it's just a banned photograph. That's wildly unconstitutional. It's a core part of our democratic process is being able to communicate who you vote for. This is 2015 now, people interact with social media constantly," he says.

Could any ballot selfie ban be enforceable?

"There is no way to do it comprehensively. Of course, there are many laws which are honored more in the breach than are actually enforced," says Jeff Hermes, an attorney with the Media Law Resource Center in New York. "Speeding laws are a great example of that."

New Hampshire's attorney general is investigating four voters for posting ballot selfies.

A report by the Digital Media Law Project found most states have some sort of prohibition against sharing marked ballots. Most have been on the books for years, and, as in New Hampshire, their aim was to fight corruption.

Gilles Bissonnette of the New Hampshire ACLU represents the people challenging New Hampshire's law. He says everybody should want clean elections, but banning selfies isn't the way to achieve them.

"The more tailored approach here would be to aggressively investigate and prosecute vote buying, and to aggressively investigate and prosecute vote bribery. But I think the question here is whether this law appropriately addresses those interests." Bissonnette says.

This case is scheduled for trial in federal court next month. In the meantime, bills to repeal the selfie prohibition are pending at the State House.

Action on either front could make the first state to impose a ballot selfie ban, the first state to get rid of one.

Copyright 2015 New Hampshire Public Radio

Josh has worked at NHPR since 2000 and serves as NHPRâââ