United States District Court, D. New Hampshire
Leon H. Rideout, Andrew Langlois, and Brandon D. Ross
William M. Gardner, New Hampshire Secretary of State
[Copyrighted Material Omitted]
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.
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),
Barbadoro, United States District Judge.
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.
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. 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
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). 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
" 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.
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
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."
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.
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), or avoiding harm, as defined
in RSA 640:3.
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
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.
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.
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.
Vote Buying and Voter Coercion
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.
1. Evidence of Vote Buying and Voter Coercion in New
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.
History at 000064. She did not provide any other details
about the incident, and it is not discussed ...