As election day nears, every news outlet is forming its own strategy for election day coverage. But what could possibly be missing from that coverage? Perhaps, ballot selfies.
In Boston, the U.S. Court of Appeals for the First Circuit is deciding on the case of a New Hampshire law that prohibits voters from posting pictures of their completed ballots online.
State Representative Leon H. Rideout, whose selfie warranted a call from the New Hampshire Attorney General’s office for violating the 2014 law, is one of four plaintiffs in the case. The two year battle has even gained support from those determined to protect the selfies as a form of free speech.
— Leon H Rideout (@RepRideout) September 10, 2014
Social media giant Snapchat filed an amicus curiae brief in support of those fighting the law, citing their own publishing interests in the document.
The arguments were twofold: that selfies are how voters, in the age of social media, have engaged with the process, and that newsgatherers (including Snapchat with its Live Stories of political coverage) have “a first amendment interest in sharing voters’ ballot selfies.”
The brief goes on to cite how expressing one’s political opinion in the past has helped to garner more voter engagement and that ballot selfies are a development from a long line of outspoken support of one’s political beliefs. These selfies are equated by Snapchat to political parties hosting “raucous gatherings” or campaign buttons.
Snapchat also urges that newsgathering platforms need access to ballot selfies for covering elections. Not just because it captures the “essence” of the voting process, but because “ballot selfies help the media perform its watchdog role in elections […]. A ballot-selfie ban like the State’s could deprive the public from learning about those problems or validating what might otherwise be dismissed as just unfounded anecdote.”
Specific ballot design issues—like the now infamous hanging chads—are listed among the things the selfie could reveal, evoking memories of the 2000 presidential election debacle in Florida, which is then used as an example.
The company argues that as the press, based on precedent from cases like Branzburg v. Hayes and Richmond Newspapers, Inc. v. Virginia, has protection in gathering the news and attempts to extend that protection to people posting the selfies, so the newsgatherers can use them.
The law slams a perpetrator – a selfie taker – with a $1,000 fine, according to NPR. A lower court had overturned the law, but as the state appealed the case, determined that the law will help prevent vote-buying or coercion.
However, Snapchat’s amicus brief strongly disagrees with the state’s claims. “And given that the State has no evidence that ballot selfies have ever been used to engage in vote buying, it has no justification—much less a compelling justification—to ban this uniquely powerful form of political expression.”
New Hampshire Attorney General Joseph Foster argued, in filings, that the law was not making content-based judgements on the “ballot selfies,” but that the law was content-neutral, making it more acceptable under the Constitution.
According to the New York Times, New Hampshire’s concern in pushing the issue to the appellate level is to protect the honesty of the election. New Hampshire Secretary of State Bill Gardner told the New York Times that he wants to prevent voters from any sort of intimidation.
“Whether an exchange of money, or for having to live with someone or some other fear, you don’t want anyone to go into that booth and end up voting for someone they didn’t really want to vote for, but felt they didn’t want to pay that price for whatever reason” said Gardner.
The decision from the First Circuit Court, which presides over appeals from Rhode Island, Massachusetts, Maine, New Hampshire, and Puerto Rico, could take months to reach a decision that could set precedent for other states with similar laws.
While this New Hampshire law is thought to be the first of its kind for banning the selfies specifically, the Huffington Post has gathered information on what is or is not prohibited when it comes to photography and ballots in each state.
Forty-two states ban ballot photography, according to the list. There’s more leniency when it comes to pictures within the polling place, with only 23 states banning polling photography specifically. Eight states allow ballot pictures, though New Mexico and Tennessee’s policies are unclear, according to the Huffington Post.
Those eight states include New Hampshire, at least until the Court of Appeals returns a verdict.
New Hampshire assistant attorney general Steve LaBonte summed up both the benefits and the risks of taking ballot selfies to share on social media in his arguments before the Boston judges.
“With this technology, there is an ability to take the world into the voting booth with you.”