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Rideout v. Gardner

United States District Court, D. New Hampshire

August 11, 2015

Leon H. Rideout, Andrew Langlois, and Brandon D. Ross
William M. Gardner, New Hampshire Secretary of State

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[Copyrighted Material Omitted]

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          For Leon H. Rideout, Andrew Langlois, Brandon D. Ross, Plaintiffs: William E. Christie, LEAD ATTORNEY, Shaheen & Gordon (Concord), Concord, NH; Gilles R. Bissonnette, American Civil Liberties Union of New Hampshire, Concord, NH.

         For N.H. Secretary of State, in his official capacity other, William M. Gardner, Defendant: Stephen G. LaBonte, LEAD ATTORNEY, N.H. Attorney General's Office, Concord, NH; Anne M. Edwards, N.H. Attorney General's Office (DOJ), Concord, NH.

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         Paul Barbadoro, United States District Judge.

         New Hampshire recently adopted a law that makes it unlawful for voters to take and disclose digital or photographic copies of their completed ballots in an effort to let others know how they have voted. Three voters, who are under investigation because they posted images of their ballots on social media sites, have challenged the new law on First Amendment grounds. As I explain in this Memorandum and Order, the new law is invalid because it is a content-based restriction on speech that cannot survive strict scrutiny.

         I. BACKGROUND

         It has been unlawful since at least 1979 for a New Hampshire voter to show his ballot to someone else with an intention to disclose how he plans to vote. See N.H. Rev. Stat. Ann. § 659:35, I (2008). In 2014, the legislature amended section 659:35, I of the New Hampshire Revised Statutes (" RSA 659:35, I" ) to provide that:

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.[1] 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.

N.H. Rev. Stat. Ann. § 659:35, I (Supp. 2014) (emphasis added to identify the modifications that became effective September 1, 2014). At the same time, the legislature reduced the penalty for a violation of RSA 659:35, I from a misdemeanor to a violation. 2014 N.H. Legis. Serv. 80 (codified as amended at N.H. Rev. Stat. Ann. § 659:35, IV). Thus, anyone who violates the new law faces a possible fine of up to $1,000 for each violation. N.H. Rev. Stat. Ann. § 651:2, IV(a) (establishing maximum penalty for a violation).

         A. Legislative History

         State Representative Timothy Horrigan introduced a bill to amend RSA 659:35, I on January 3, 2013. See Exhibit G to the Declaration of Gilles Bissonnette, Esq. in Support of Plaintiffs' Motion for Summary Judgment (" Legislative History" ) at 000048, 000140, Rideout v. Gardner, No. 14-cv-489-PB (filed Mar. 27, 2015).[2] As initially proposed, the bill simply stated that " [n]o voter shall take a photograph or a digital image of his or her marked ballot." Id. at 000144. In testimony in favor of the bill, Representative Horrigan explained why he was proposing his amendment:

Last fall, in late October 2012, one of the workers at my local Democratic campaign office received her absentee ballot. After she filled it out, she was about to have a photo of her ballot taken to be posted to her social media accounts. We began to worry taking such a photo might be a violation of federal and state election laws. It turns out that this may not necessarily have been a violation of the letter of the law -- but it would definitely be a violation of the spirit of RSA 659:35

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" Showing or Specially Marking a Ballot."

Id. at 000142. He also stated, " The 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." Id.

         The bill first went to the House Committee on Election Law (the " Election Committee" ), which recommended its passage with only a slight organizational change and the requirement that posters be placed in polling places informing voters of the new law. See Legislative History at 000110, 000114. Members of the Election Committee noted that " showing your ballot on social media could cause und[ue] influence from employers or parents" and that the bill " protects privacy of voter[s] and stops coercion." Id. at 000130. Representative Mary Till wrote the statement of intent for the Election Committee, noting, " RSA 659:35 was put in place to protect voters from being intimidated or coerced into proving they voted a particular way by showing their completed ballot or an image of their completed ballot." Id. at 000114.

         The bill was then referred to the House Committee on Criminal Justice and Public Safety (the " Criminal Justice Committee" ), a majority of which recommended approval of the bill with the penalty reduced from a misdemeanor to a violation. See Legislative History at 000076, 000078. Notes from the Criminal Justice Committee's hearing indicate that some committee members were concerned with whether the bill and its penalties were necessary. See id. at 000099-000100. Representative Horrigan defended the law during the hearing, explaining that it " tightens up" existing law governing election fraud. Id. at 000099. Deputy Secretary of State David Scanlan also spoke in support of the bill, providing a " history of voting irregularities, including votes being bought." [3] Id. at 000100. When asked whether the bill was necessary, Deputy Secretary Scanlan responded that the " privacy of [the] ballot must be preserved." Id. Ultimately, a majority of the Criminal Justice Committee recommended passing the bill so long as the penalty was decreased to a violation. Id. at 000076, 000078.

         A minority of the Criminal Justice Committee, however, filed a report concluding that it would be " inexpedient to legislate" the bill. See Legislative History at 000083. The minority wrote:

Although the Minority agrees that the Criminal Justice Committee acted wisely in reducing the penalty from a misdemeanor to a violation, we believe this remains a very bad bill. . . . [I]t is not needed because we already have laws which prohibit people from selling their votes for financial gain, and that was the only reason supporters gave for passing the bill. . . . [T]his bill as drafted is overly broad. As such, it represents an intrusion on free speech. It fights a bogey man, which does not exist, at the expense of yielding even more of our freedoms.

Id. The minority suggested further amendment of the final sentence of paragraph I 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),[4] or avoiding harm, as defined

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in RSA 640:3.[5]

Id. at 000097 (emphasis added to denote minority's suggestions). Such an amendment, they argued, would make it illegal only to post a photo for financial gain or to avoid harm. Id. at 000083. They noted that this was the original intent of the bill according to the Secretary of State. Id. Nevertheless, the amendment was not supported by the majority of the Criminal Justice Committee and accordingly was not added to the bill that was presented to the House of Representatives. Id. at 000076, 000078.

         The bill, as amended by the Election Committee and the majority of the Criminal Justice Committee, passed the full House by a veto-proof 198-96 majority. See Legislative History at 000063. On April 9, 2014, the Senate Public and Municipal Affairs Committee held a hearing, at which Representatives Horrigan and Till and Deputy Secretary Scanlan testified in support of the bill. Representative Horrigan stated that the practice of posting images of ballots on social media accounts " compromises the security of the polling place and the secrecy of the ballot." Id. at 000063. He also cautioned that " [t]he new high-tech methods of showing a ballot absolutely could be used to further a serious vote-buying scheme." Id. Similarly, Representative Till explained that " the seemingly innocent bragging about how one voted by posting a photo of one's completed ballot on Facebook, could undermine efforts to [e]nsure that no one is coerced into voting a particular way." Id. at 000064. On April 17, 2014, the Senate Committee on Public and Municipal Affairs recommended that the bill " ought to pass," and the Senate then passed the bill. Id. at 000057. On June 11, 2014, Governor Maggie Hassan signed the bill into law, effective September 1, 2014.

         The new law's legislative history reveals that its opponents were concerned that the proposed law would infringe freedom of speech. In response, Representative Horrigan stated:

The bill's opponents framed this as a free speech issue, but political speech is in fact prohibited at the polling place. You absolutely have the right to engage in as much free speech as you want to beyond the boundary marked by the " No Electioneering" signs. However, the space inside that boundary is a secure space where the debate stops and the secret balloting begins.

         Legislative History at 000063. Representative Till also addressed the opponents' concern, stating:

[E]very voter is free to tell as many people as they desire, in whatever forum they choose, how they voted. What is not allowed is to show one's completed ballot since, once cast, the ballot is the property of the state and in order to protect the secrecy of the ballot cannot be publicly identified with a particular voter.

Id. at 000064.

         B. Vote Buying and Voter Coercion

         Secretary of State William Gardner, the defendant in this action, defends the new law on the grounds that it is needed to prevent vote buying and voter coercion.

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          1. Evidence of Vote Buying and Voter Coercion in New Hampshire

         The legislative history of the 2014 amendment to RSA 659:35 contains only a single reference to an actual alleged instance of vote buying in New Hampshire. As Representative Till described the incident:

I was told by a Goffstown resident that he knew for a fact that one of the major parties paid students from St Anselm's $50 to vote in the 2012 election. I don't know whether that is true or not, but I do know that if I were going to pay someone to vote a particular way, I would want proof that they actually voted that way.

         Legislative History at 000064. She did not provide any other details about the incident, and it is not discussed ...

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