Balancing Free Speech and the Right To Vote in New Hampshire
The right to free speech and the right to vote. They are both sacred rights that are essential to a functioning democracy. Yet these rights clash every election, as states and municipalities struggle with how to respect freedom of speech in polling places while simultaneously ensuring that citizens can vote in an environment free from harassment and intimidation. Both New Hampshire and courts throughout the country have struggled with how to balance these competing rights.
The seminal decision addressing this conflict is the 1992 case Burson v. Freeman. There, a city council candidate’s campaign treasurer challenged on free speech grounds a Tennessee law prohibiting the solicitation of votes and the display or distribution of campaign literature within 100 feet of the entrance to a polling place. “This case,” the United States Supreme Court noted, “presents us with a particularly difficult reconciliation: the accommodation of the right to engage in political discourse with the right to vote—a right at the heart of our democracy.”
The Court ultimately concluded that the statute did not violate the First Amendment. The Court stated that, though the law only banned political speech, it was necessary in order to serve the compelling state interest in preventing voter intimidation and election fraud. As the Court explained: “While we readily acknowledge that a law [discriminating on the basis of political content] rarely survives such scrutiny, an examination of the evolution of election reform, both in this country and abroad, demonstrates the necessity of restricted areas in or around polling places.”
The Court relied heavily on how such speech bans around polling places have been common for over a century in an effort to combat voter intimidation and election fraud: “After an unsuccessful experiment with an unofficial ballot system, all 50 States, together with numerous other Western democracies, settled on the same solution: a secret ballot secured in part by a restricted zone around the voting compartments. We find that this widespread and time-tested consensus demonstrates that some restricted zone is necessary in order to serve the States’ compelling interests in preventing voter intimidation and election fraud.”
Consistent with the Supreme Court’s findings, New Hampshire imposes restrictions on political speech near polling places, though these restrictions are not as severe as the Tennessee law upheld in Burson. For example, under RSA 659:43, II, “[n]o person who is a candidate for office or who is representing or working for a candidate shall distribute any campaign materials or perform any electioneering activities … within a corridor 10 feet wide” along the entrance of a polling place. How long this corridor extends beyond the polling place entrance is to be “determined by the moderator where the election is being held.”
New Hampshire also places restrictions on political speech within the polling place. RSA 659:44 states that “[n]o election officer shall electioneer while in the performance of his official duties.” This is an understandably prudent measure designed to ensure that election officials perform their duties neutrally. Similarly, New Hampshire law bans voter intimidation and coercion, including within a polling place. Under RSA 659:40, II, “[n]o person shall use or threaten force, violence, or any tactic of coercion or intimidation to knowingly induce or compel any other person to vote or refrain from voting, vote or refrain from voting for any particular candidate or ballot measure, or refrain from registering to vote.”
Following the Burson decision, there is little doubt that these polling place speech restrictions in New Hampshire are not only constitutional, but prudent measures designed to preserve the sanctity of one’s right to vote. But Burson does not provide a blank check for the government to restrict political speech related to the act of voting.
For example, on September 1, 2014, New Hampshire banned a person from displaying a photograph of his or her marked ballot reflecting “how he or she has voted,” including on the Internet through social media platforms like Twitter, Facebook, and Instagram. In response to a lawsuit brought by the American Civil Liberties Union of New Hampshire, the First Circuit Court of Appeals struck down this law banning “ballot selfies,” ruling that “the
restrictions on speech imposed by this [law] are antithetical to democratic values.” As the Court explained: “The restriction affects voters who are engaged in core political speech, an area highly protected by the First Amendment. Ballot selfies have taken on a special communicative value: they both express support for a candidate and communicate that the voter has in fact given his or her vote to that candidate.”
The idea behind New Hampshire’s ballot selfie ban was to address vote buying and voter coercion. But the Court explained that the law was simply too broad: “New Hampshire may not impose such a broad restriction on speech banning ballot selfies in order to combat an unsubstantiated and hypothetical danger. We repeat the old adage: ‘a picture is worth a thousand words.’” The Court also highlighted that New Hampshire’s ballot selfie ban was broader than the speech restriction in Burson because it “does not secure the immediate physical site of elections, but instead controls the use of imagery of marked ballots, regardless of where, when, and how that imagery is publicized.”
Similarly, multiple courts since Burson have rejected laws implicating elections that ban innocent, political, and non-disruptive speech. For example, in State v. Brookins, the Maryland Supreme Court struck down a state law that prohibited candidates and others from paying persons for performing “walk around services” (such as distributing sample ballots) on election days. The law was enacted to prevent election corruption. But the Court concluded that the law needlessly banned protected political speech. Voter fraud and corruption do not, the Court explained, “give the State the right to abridge speech because it paternalistically seeks to establish a completely fraud-free atmosphere within which the electorate is exposed only to the absolute untainted truth about political candidates or their platforms.”
In light of these decisions, can a state prevent voters from passively wearing campaign buttons and clothing while they are waiting in line in a polling place? It is unclear.
During the last legislative session, New Hampshire enacted a new provision in RSA 659:43, I, banning people within polling places—including voters standing in line—from wearing any campaign material in the form of a pin, sticker, or article of clothing. According to the Secretary of State’s Office, those who refuse to cover up a campaign shirt or remove a sticker should not be turned away on Election Day, but the Moderator can report them to the Attorney General’s office.
Immediately prior to the 2016 general election, some complained that this ban violated the First Amendment. This view may have some merit. Such a ban, for instance, prohibits a voter who is simply standing in line from passively wearing a “Make America Great Again” hat or an “I’m with Hillary” button. While the law in Burson dealt with political speech that attempted to influence others, New Hampshire’s ban on clothing and pins, as interpreted by the Secretary of State’s Office, arguably goes further by restricting passive speech that has no intent to influence others in the polling place.
Some courts, however, have allowed similar restrictions banning political clothing and pins in the polling place. For example, in Minnesota Majority v. Mansky, individuals wearing local Tea Party shirts that said “Don’t Tread On Me” and buttons that said “I.D. Me Please” where told to remove the items if they wanted to vote. This instruction was given under a Minnesota law stating that “[a] political badge, political button, or other political insignia may not be worn at or about the polling place on primary or election day.” The Eighth Circuit Court of Appeals concluded that this speech restriction was reasonable in light of Minnesota’s legitimate interest in maintaining peace, order, and decorum in the polling place. Similarly, in AFSCME, Council 25 v. Land, the Michigan Department of State issued a directive telling election inspectors that they had the right to ask voters entering the polls to remove campaign buttons or cover up clothing bearing a campaign slogan or a candidate’s name. A Michigan federal court ruled that this directive was permissible because it was viewpoint neutral and reasonable in light of the purpose of the polling place.
Simply put, how to balance the right to free speech and the right to vote in an environment free from intimidation are difficult questions. The line between free speech and protecting the sanctity of the polling place is not always clear. What we do know is that the government has significant latitude in restricting speech in and around a polling place. But this latitude is not unlimited. The speech restriction must address an actual problem in need of solving, not a speculative concern. And once the government starts attempting to regulate political speech beyond the polling place—as New Hampshire did with its ban on ballot selfies—courts will be far less willing to conclude that the speech restriction is necessary to preserve the sanctity of the voting process.
Gilles Bissonnette is Legal Director of the American Civil Liberties Union of New Hampshire. He may be reach at 603.224.5591, ext. 103, or at email@example.com.