Rideout v. Gardner
123 F. Supp. 3d 218
D.N.H.2015Background
- New Hampshire amended RSA 659:35, I (effective Sept. 1, 2014) to prohibit a voter from taking a digital or photographic image of a marked ballot and distributing it (penalty: up to $1,000).
- Three voters (Rideout, Langlois, Ross) posted photos of their marked ballots on social media and were investigated; they sued under 42 U.S.C. § 1983 seeking declaratory (and injunctive) relief challenging the statute as unconstitutional facially and as-applied.
- The State defended the law primarily as necessary to prevent vote buying and voter coercion; legislative history cited concerns about coercion and a single unsubstantiated anecdote of alleged vote buying.
- The parties submitted cross motions for summary judgment; no material facts were disputed and the court resolved the matter on the papers.
- The court analyzed whether the statute is content-based or content-neutral, applied strict scrutiny if content-based, and evaluated whether the State demonstrated a compelling interest and narrow tailoring.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RSA 659:35, I is content-based or content-neutral | The ban targets images that disclose how a voter voted (subject matter) and so is content-based | The law is a limited restriction (doesn’t bar other ways of reporting votes) or governs nonpublic forum activity at polling places | Content-based on its face; strict scrutiny applies |
| Whether the State has a compelling interest (vote buying / coercion) sufficient to justify the restriction | Plaintiffs: political speech is protected and State offers only speculation and anecdote, not evidence of an actual problem | State: preventing vote buying and coercion are compelling interests; historical and preventive rationales justify the law | Although preventing vote buying/coercion are compelling in the abstract, the State failed to show an actual problem tied to images of ballots; evidence lacking, so interest not proven here |
| Whether the statute is narrowly tailored / least restrictive means | Plaintiffs: statute is overbroad and punishes innocuous political expression; less restrictive alternatives (punish use of images in vote-buying/coercion schemes) exist | State: statute reasonably prevents confirmation-proof that could facilitate fraud/coercion; enforcement difficulty justifies broad ban | Statute is vastly overinclusive and not narrowly tailored; alternatives exist and State didn’t show they’d be ineffective |
| Whether ballots or voters’ markings constitute government speech (thus no First Amendment protection) | Plaintiffs: voters’ markings are private expressive acts and not state speech | State: analogized to government-controlled messages (e.g., license plates) to argue no First Amendment protection | Court rejected government-speech argument: ballots/markings are not state speech and First Amendment applies |
Key Cases Cited
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (U.S. 2015) (defines content-based regulation requiring strict scrutiny)
- United States v. Playboy Entm’t Grp., 529 U.S. 803 (U.S. 2000) (content-based burdens receive rigorous scrutiny)
- Burson v. Freeman, 504 U.S. 191 (U.S. 1992) (upholding polling-place buffer zones based on historical evidence)
- Walker v. Texas Div., Sons of Confederate Veterans, 135 S. Ct. 2239 (U.S. 2015) (government-speech doctrine for specialty license plates)
- McCullen v. Coakley, 134 S. Ct. 2518 (U.S. 2014) (narrow tailoring and close fit requirement for speech restrictions)
- Ashcroft v. ACLU, 542 U.S. 656 (U.S. 2004) (strict scrutiny requires least restrictive means for content-based regulation)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (U.S. 1994) (deference to legislative predictive judgments in speech context under certain conditions)