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Rideout v. Gardner

United States Court of Appeals, First Circuit

September 28, 2016

LEON H. RIDEOUT, ANDREW LANGLOIS, BRANDON D. ROSS, Plaintiffs, Appellees,
v.
WILLIAM M. GARDNER, in his official capacity as Secretary of State of the State of New Hampshire, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE Hon. Paul J. Barbadoro, U.S. District Judge

          Stephen G. LaBonte, Assistant Attorney General, with whom Joseph A. Foster, New Hampshire Attorney General, and Laura E. B. Lombardi, Senior Assistant Attorney General, were on brief, for appellant.

          Gilles R. Bissonnette, with whom American Civil Liberties Union of New Hampshire, William E. Christie, and Shaheen & Gordon, P.A. were on brief, for appellees.

          Christopher T. Bavitz, Cyberlaw Clinic, Harvard Law School, Justin Silverman, and Andrew F. Sellars on brief for The New England First Amendment Coalition and The Keene Sentinel, amici curiae.

          Eugene Volokh and Scott & Cyan Banister First Amendment Clinic, UCLA School of Law on brief for the Reporters Committee for Freedom of the Press, amicus curiae.

          Neal Kumar Katyal, Sean Marotta, Hogan Lovells U.S. LLP, Christopher T. Handman, and Dominic F. Perella on brief for Snapchat, Inc., amicus curiae.

          Before Lynch, Lipez, and Thompson, Circuit Judges.

          LYNCH, Circuit Judge.

         In 2014, New Hampshire amended a statute meant to avoid vote buying and voter intimidation by newly forbidding citizens from photographing their marked ballots and publicizing such photographs. While the photographs need not show the voter, they often do and are commonly referred to as "ballot selfies." The statute imposes a fine of up to $1, 000 for a violation of the prohibition. See N.H. Rev. Stat. Ann. § 659:35, IV; id. § 651:2, IV(a).

         Three New Hampshire citizens who are under investigation for violation of the revised statute, and who are represented by the American Civil Liberties Union of New Hampshire, challenged the statute's constitutionality. The district court held that the statute is a content-based restriction of speech that on its face violates the First Amendment. Rideout v. Gardner, 123 F.Supp.3d 218, 221 (D.N.H. 2015). The New Hampshire Secretary of State appeals, arguing that the statute is justified as a prophylactic measure to prevent new technology from facilitating future vote buying and voter coercion. We affirm on the narrower ground that the statute as amended fails to meet the test for intermediate scrutiny under the First Amendment and that the statute's purposes cannot justify the restrictions it imposes on speech.

         I.

         In the late nineteenth century, political parties, unions, and other organizations had the power to print their own ballots, each of which was easily identifiable and distinguishable from other ballots by size and color. This practice allowed the ballot-printing organizations to observe how individuals voted at the polls, which in turn created an obviously coercive environment. During this period, New Hampshire undertook a series of reforms to combat widespread vote buying and voter intimidation. In 1891, the State passed legislation requiring the Secretary of State to prepare ballots for state and federal elections. 1891 N.H. Laws ch. 49, § 10. The State then passed a statute to forbid any voter from "allow[ing] his ballot to be seen by any person, with the intention of letting it be known how he is about to vote." 1911 N.H. Laws ch. 102, § 2.

         Since at least 1979, that provision has been codified in relevant part at section 659:35, I, which, until 2014, read: "No voter shall allow his ballot to be seen by any person with the intention of letting it be known how he is about to vote except as provided in RSA 659:20." The exception in section 659:20 allows voters who need assistance marking a ballot to receive such assistance. N.H. Rev. Stat. Ann. § 659:20. In 2014, the New Hampshire legislature revised section 659:35, I as follows:

No voter shall allow his or her ballot to be seen by any person with the intention of letting it be known how he or she is about to vote or how he or she has voted except as provided in RSA 659:20. This prohibition shall 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.

Id. § 659:35, I (revisions underlined). The penalty for a violation of the statute is a fine of up to $1, 000. Id. § 659:35, IV; id. § 651:2, IV(a).

         The original version of HB366, the bill amending section 659:35, I, provided that "[n]o voter shall take a photograph or a digital image of his or her marked ballot, " and was introduced by State Representative Timothy Horrigan on January 3, 2013. Horrigan stated that "[t]he main reason this bill is necessary is to prevent situations where a voter could be coerced into posting proof that he or she voted a particular way." The bill started at the House Committee on Election Law, which recommended its passage, and the members of which expressed rationales for the bill similar to Horrigan's.

         The bill then went to the House Committee on Criminal Justice and Public Safety. Deputy Secretary of State David Scanlan spoke in support of the bill, emphasizing the need to prevent vote buying and to protect the "privacy of [the] ballot." Though a majority of the members of the Criminal Justice Committee supported the bill, a minority disagreed and filed a report concluding that the bill was "an intrusion on free speech." In order to restrict the bill's scope to activity connected to vote buying, the minority suggested amending the bill as follows:

This prohibition shall 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 only if the distribution or sharing is for the purpose of receiving pecuniary benefit, as defined in RSA 640:2, II(c), or avoiding harm, as defined in RSA 640:3.[1]

         The majority of the Criminal Justice Committee did not support this amendment, however, and HB366, absent the proposed limitation, proceeded to the full House of Representatives, which passed it by a vote of 198-96. The bill was then introduced to the Senate Committee on Public and Municipal Affairs, which recommended the bill to the full Senate. ...


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