Recently, three people from New Hampshire posted photos of their voting ballots during the New Hampshire Republican primaries to Facebook. This is a violation of New Hampshire law. There is an actual state law on the books prohibiting the photographing and publishing of ballots into the public domain via a social media website. Violation of this law can lead to fines in excess of $1000. For posting a photo to any social media site.
For comparison’s sake, Chelsea Handler recently posted a topless photo to her Twitter page. Nudity and the general grossness of Chelsea Handler apparently aren’t enough to violate Twitter’s community standards policy, let alone a state law, so why is a photo of a voting ballot such a big deal?
In the late 19th century, “vote buying” was a serious controversy. Voters would “sell” their votes to particular individuals or firms, which in turn would provide the voter with services, such as money, alcohol, or a back rub (presumably). People would need to provide their ballot as proof of voting. As you can imagine, this was a problem. Interest groups or particularly wealthy individuals could have huge influence in election by buying off voters and effectively swinging elections. New Hampshire’s population in 1880 was just under 350,000 people, according to the US Census. That’s three and a half Happy Valleys. I can promise you with devastating certainty that if the Pennsylvania state government did a “Free Chipotle in exchange for a your vote in the coming election” promotion at four Penn State home football games, you would easily have bought 350,000 votes.
So this law made a ton of sense in 1880, but it doesn’t make quite as much in 2014, according to the three aforementioned New Hampshirites (ians?) who are now suing the state government, citing a violation of the first amendment. Reading the facts, you might think they make a good point and their rights are indeed being violated. Some may even say a law such as this is unconstitutional.
If you sensed some foreshadowing of my intentions in that previous sentence, well done, and you have what I like to call “situational awareness” and possibly a mild form of reading comprehension. Since the trio of Facebookers are alleging a First amendment violation, I assume they are referring their explicitly stated “Freedom of Speech.” The US Constitution is awesome because it grants us the freedom to think how we want, and express those opinions openly. In this country, there are very few restrictions to free speech. For example, if I was in China writing a blog such as this, they would cut of my fingers with my toenails. One such restriction to freedom of speech is commercial speech. This refers mostly to things like advertisements, but individuals can also participate in commercial speech. Like advertising your vote on Facebook. I am not suggesting vote buying is still running rampant in this country, but am I completely crazy to think such a thing may still happen, even on a much smaller scale? Maybe posting that photo of a ballot to Facebook will be used to show someone the intention to vote. It doesn’t matter though, because even for a law against free speech to even be considered, the government has the burden of proving the speech in question advances a substantial government interest.
….like possibly influencing the outcome of a government election because of vote buying?
Look, I’m not a Constitutional Law scholar, and I’m definitely not the authority on New Hampshire law. I’m not suggesting anything regarding this case, and I’m definitely not advocating a federal law prohibiting the publication of ballots. What you do with your vote is up to you. However, vote buying and selling sort of undermines this who “democracy” thing we’ve had going for the last 230 some odd years. This case hasn’t gone to trial yet, so I’m certainly interested to hear the outcome. I just want people to keep both sides of this argument in mind.