Three federal appeals court judges showed skepticism on Tuesday on how a 2014 New Hampshire law banning voters from taking selfies with their ballots on election day does not violate the U.S. right to free speech. The judges repeatedly asked a New Hampshire official to explain how the law could prevent a replay of scandals that rocked many U.S. states in the late 19th century, when politicians paid for votes, in cash or alcohol. “It’s well known that in the late 1800s, buying votes was a huge problem,” Stephen LaBonte, the state’s associate attorney general, told a three-judge panel of the First Circuit of the U.S. Court of Appeals in Boston. “What year is it now?” Judge Sandra Lynch shot back. “In the late 1800s there was a huge problem that obviously didn’t involve ballot-selfies, which did not exist at the time.”
LaBonte explained the state’s position that the growing trend of voters taking pictures with their filled-in ballots and posting them on social media sites, including Facebook and Twitter, could lead to voters being paid or coerced to change their votes. “You have no evidence of that. None,” Lynch said.
Opponents of the ban contend that it violates the free-speech protections of the First Amendment of the U.S. Constitution. A New Hampshire voter sued in October 2014 after posting online a photo of his ballot, on which he filled in the name of his dog as a sign of displeasure over his choices in the 2014 Republican primary for the U.S. Senate.
The U.S District Court in New Hampshire agreed, pronouncing the law unconstitutional in August 2015. The state appealed the following month, setting the stage for Tuesday’s arguments