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Document: 00117060882
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Before
Lynch, Lipez, and Thompson,
Circuit Judges.
Case: 15-2021
Document: 00117060882
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Case: 15-2021
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the
late
nineteenth
century,
political
parties,
unions, and other organizations had the power to print their own
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In 1891,
1911
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Id.
Document: 00117060882
659:35,
Page: 5
(revisions
underlined).
The
penalty
for
Id. 659:35,
Representative
Timothy
Horrigan
on
January
3,
2013.
In
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Case: 15-2021
Document: 00117060882
or sharing
means only
purpose of
RSA 640:2,
640:3.1
Page: 6
Senate
Committee
on
Public
and
Municipal
and
the
Governor
signed
the
bill
Affairs,
which
law,
effective
September 1, 2014.
The legislative history of the bill does not contain any
corroborated evidence of vote buying or voter coercion in New
Hampshire
during
the
twentieth
and
twenty-first
centuries.
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Election Law's statement of intent for the bill, provided the sole
anecdotal allegation of vote buying.
She asserted:
correctly held that "[t]he summary judgment record does not include
any evidence that either vote buying or voter coercion has occurred
in New Hampshire since the late 1800s."
at 224.
As of August 11, 2015, when the district court issued
the summary judgment order on appeal here, the New Hampshire
Attorney General's Office had undertaken investigations of four
individuals for alleged violations of section 659:35, I, arising
from their publication of "ballot selfies"2 after voting in the
September 9, 2014 Republican primary election.
Three of those
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individuals -- Leon Rideout, Andrew Langlois, and Brandon Ross -are the plaintiffs in this case.3
Rideout,
member
of
the
New
Hampshire
House
of
posted the ballot selfie on Facebook with a note that read in part:
"Because
all
Akira . . . ."
of
the
candidates
SUCK,
did
write-in
of
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reflected
that
candidates.
I
and,
he
voted
for
himself
and
other
Republican
because
of
the
law's
penalties,
did
not
immediately
19, 2014, having learned that other voters were under investigation
for violating section 659:35, I, Ross posted the ballot selfie on
Facebook with a note reading: "Come at me, bro."
Representative
The
complaint
sought
declaration
invalidating
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Supreme
Court
has
Page: 10
identified
statutes
as
content-based
Id.
content-based
restriction
on
speech
because
it
requires
district
court
applied
strict
Id.
scrutiny,
"which
Id. at 231.
that
asserted
although
those
two
were
"plainly
And the court found that the statute was not narrowly
part,
punish
only
the
innocent
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while
leaving
actual
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Id. at 235.
Here, no
See
novo
Standards
to
evaluate
justifications
the
state
of
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Id.
Narrow tailoring
contrast,
content-neutral
regulations
require
inquiry
in
determining
content
"The
neutrality . . . is
The government's
A regulation that
."
Id.
(citation
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omitted).
Content-neutral
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the
law
governmental
be
"narrowly
interest."
tailored
Id.
to
serve
"[U]nlike
significant
content-based
facially
scrutiny.
unconstitutional
even
applying
only
intermediate
Case: 15-2021
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In
order
to
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survive
intermediate
scrutiny,
section
Gardner
essentially
concedes
that
section
He
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But intermediate
of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984).
Digital photography, the internet, and social media are
not unknown quantities -- they have been ubiquitous for several
election
cycles,
without
being
shown
to
have
the
effect
of
As the plaintiffs
'State
evidence
offer[s]
restriction.'"
no
or
anecdotes
in
support
of
its
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413 F.3d 110, 116 (1st Cir. 2005) (alteration in original) (quoting
Fla. Bar v. Went For It, Inc., 515 U.S. 618, 628 (1995)).6
Secretary Gardner also highlights scattered examples of
cases involving vote buying from other American jurisdictions.
See United States v. Thomas, 510 F.3d 714, 717 (7th Cir. 2007);
United States v. Shatley, 448 F.3d 264, 26566 (4th Cir. 2006);
United States v. Johnson, No. 5:11CR143, 2012 WL 3610254, at *1
(E.D. Ky. Aug. 21, 2012).
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polling
place."
distinguishable.
Id.
at
193.
Burson
is
obviously
20010.
The
plurality
acknowledged
in
Burson
See id.
that
two
Id. at 211.
Section 659:35, I
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Id. at 2537.
At least
two different reasons show that New Hampshire has not attempted to
tailor its solution to the potential problem it perceives.
First,
New Hampshire
the
extent
that
the
State
hypothesizes
this
will
And
make
See 18 U.S.C.
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Document: 00117060882
(prohibiting
voter
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coercion
or
intimidation);
id.
10307(c)
buying
or
selling
of
votes
district
court
without
the
need
for
this
are
less
prohibition.8
As
the
observed,
there
("[T]he
Commonwealth
has
available
to
it
variety
of
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that
Committee.
The
ballot-selfie
prohibition
is
like
Butler v. Michigan,
As the Supreme
important
communicative
functions:
it
attracts
the
Zauderer v. Office
Amicus
Snapchat
stresses
that
"younger
voters
participate in the political process and make their voices heard"
through the use of ballot selfies. According to the Pew Research
Center, in the 2012 election, "22% of registered voters have let
others know how they voted on a social networking site such as
Facebook or Twitter," "30% of registered voters [were] encouraged
to vote for [a particular candidate] by family and friends via
posts on social media such as Facebook and Twitter," and "20% of
registered voters have encouraged others to vote by posting on a
social networking site." Lee Raine, Pew Research Center, Social
Media and Voting (Nov. 6, 2012), http://www.pewinternet.org/
2012/11/06/social-media-and-voting/.
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also Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (holding
that there is a First Amendment interest in videotaping government
officials performing their duties in public places).
Ballot
659:35,
reaches
and
prohibits
innocent
show
substantially
plainly
more
that
speech
section
than
is
The plaintiffs'
659:35,
necessary
I
to
"burden[s]
further
the
(quoting Ward, 491 U.S. at 799); see also McIntyre, 514 U.S. at
351 (holding that, despite legitimate interest in reducing fraud,
government
could
not
impose
"extremely
broad
prohibition"
on
Indeed, several
have
not
reported
an
uptick
in
vote
buying
or
voter
intimidation.10
10
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by
banning
ballot
selfies
in
order
to
combat
an
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