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You didn’t take a picture of your ballot Tuesday, did you? (It’s illegal)

By DAVID BROOKS

Staff Writer

Polling places are a celebration of democracy, along with all its rules and regulations, but one rule was broken dozens of times Tuesday, including at least once by a state representative: the law making it a misdemeanor to take or share a photo of your completed ballot.

“I did it to make a statement,” said Rep. Leon Rideout, of Lancaster, who posted a picture of his completed ballot to his Twitter account. “I had promised a few other reps that I would post my ballot, and I did.”

It has long been illegal in New Hampshire – and many other places – to share a picture of your completed ballot, but until this year the state prohibition was indirect, based on laws written before the Internet was created.

In the most recent legislative session, lawmakers approved and Gov. Maggie Hassan signed a law making the prohibition more obvious:

“No voter shall take a digital image or photograph of their marked ballot and distribute or share the image via social media or any other means,” says wording added to state law RSA 659:35, which is titled “Showing or Specially Marking Ballot.” A violation is a misdemeanor.

“I think it’s unconstitutional,” Rideout said. “It’s really just an overreach of the government trying to control something that, in my opinion, doesn’t need to be regulated.”

Many governments forbid people from giving others proof about how they voted. The idea is to make it harder for voters to be influenced: Bad guys won’t try to bribe or threaten voters if they can’t get confirmation that the bribe or threat actually worked, or so the theory goes.

As far as The Telegraph has been able to find, no one has ever been charged for taking what the paper has called a “ballot selfie.”

A Tuesday post about the issue on the GraniteGeek blog drew several scornful comments from people who thought it was government overreach.

This response from Brandon Ross, a New Hampshire attorney, was typical: “Sounds like exactly the opposite of how that free speech thing is supposed to work.”

But New Hampshire isn’t alone. Dozens of states, including Massachusetts and Maine, have laws that specifically or indirectly forbid pictures of completed ballots.

Matt Whitlock, of North Weare, referenced this fact in his comment on the GraniteGeek post. He said he “almost had my ballot thrown out in Gainesville, Florida, because I snapped a picture of it with my phone. … They let me cast my ballot, but only after I showed them that I deleted the photo.”

And it’s not just U.S. states that outlaw the practice.

The Canadian province of Ontario forbids photos being taken in the voting booth, going so far as to have such photos removed from Facebook. In South Africa, a DJ named Sbu in the city of Soweto tweeted photos of his own ballot in the July elections and faced fines as a result. In the Philippines, the Commission of Elections issued reminders in 2013 that no photos can be taken in voting booths.

This law is part of a broader theory in strategy, experts say, in which a position is indirectly strengthened by the counterintuitive process of limiting its options.

“Political democracy itself relies on a particular communication system in which the transmittal of authentic evidence is precluded: the mandatory secret ballot is a scheme to deny the voter any means of proving which way he voted,” writes economist Thomas Schelling, a Nobel laureate, in his book “The Strategy of Conflict.”

“Being stripped of his power to prove how he voted, he is stripped of his power to be intimidated. Powerless to prove whether or not he complied with a threat, he knows – and so do those who would threaten him – that any punishment would be unrelated to the way he actually voted.”

In Nashua, the issue came up in November 2013 when two city candidates were shown to have posted pictures of their completed ballot on Instagram and Facebook. No charges were placed.

The law, RSA 659:35, dates back to 1979. It originally said “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,” with a second paragraph saying, “No voter shall place a distinguishing mark upon his ballot nor write in any name as the candidate of his choice with the intention of thereby placing a distinguishing mark upon his ballot.”

Officials argued that taking a photograph of your ballot is functionally the same as placing a distinguishing mark, in that it allows others to confirm how you voted. With the new wording added, specifically forbidding photos and sharing online, that argument is no longer necessary.

David Brooks can be reached at 594-6531 or dbrooks@nashua
telegraph.com. Also, follow Brooks on Twitter (@GraniteGeek).