The seamy side of those fun ‘ballot selfies’

Eleven years ago an amusing little controversy arose around New Hampshire elections: Whether the novel act of posting “selfies” online (this was 2013, remember) could legally be applied to pictures of your completed ballot inside the voting booth.

The issue went to federal court where a judge eventually ruled that “ballot selfies” are OK. And even though the debate involved hot-button issues like freedom of speech and the sanctity of the polling place, nobody got too worked up.

But that was then and this is now. Now we’re in the Trump Era, with rage and threats as part of standard political discourse, and suddenly fun little ballot selfies have an unsavory side.

First, a history lesson: In the 1970s New Hampshire legislators passed a law – RSA 659:35, titled “Showing or Specially Marking Ballot” – that said, “No voter shall place a distinguishing mark upon his or her ballot nor write in any name as the candidate of his or her choice with the intention of thereby placing a distinguishing mark upon the ballot.” Many states and many other countries have similar laws.

The idea behind this odd-sounding provision, which so far as I could determine never resulted in a prosecution here, is to prevent anybody from being able to prove how they voted.

Why would such proof be bad? It dates back to earlier days of electioneering when people were paid to vote certain ways or threatened if they didn’t. You showed your ballot to get your money or avoid getting pummeled.

But if there wasn’t any way to prove that a particular ballot was yours, everybody had to take your word for how you voted. Payment and threats were rendered useless. The sanctity of the secret ballot was preserved.

Obviously, posting a ballot selfie undermines this idea, which is why the state Attorney General’s Office questioned a few people, including a state representative, when they posted ballot selfies after a party primary in 2013. A mixed bag of folks, including the ACLU, objected. They argued that we have the right to show people how we voted and a federal judge eventually agreed.

“At its core, this dispute turns on a claim that the political speech rights of voters must be curtailed to protect the vote against those who would corrupt it with cash or coercion,” Judge Paul Barbadoro wrote. “But the record in this case simply will not support a claim that these two interests are in irreconcilable conflict.”

Oddly, the law remains on the books because the legislature has never gotten around to removing it: “This prohibition shall include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.” But the court ruling means it’s not enforceable, says Secretary of State Dave Scanlan.

So snap away if you want as long as you do it inside your voting booth. You can’t take pictures in the rest of the polling place because you might capture somebody else’s ballot.

That sounds harmless enough. What’s the unsavory side?

Ballot selfies can undermine efforts to remind people that their ballot is secret and they don’t have to tell their spouse or boss or pastor how they’re voting.

Obviously, ballot secrecy applies to everybody but stories of women in difficult relationships being bullied to support candidates means they’re the target audience of articles headlined “No one can find out who you vote for unless you tell them” in Elle magazine, and of websites like “Vote Without Fear,” which grew out of a site empowering divorced women.

The problem is that ballot selfies undermine those efforts. An abusive boyfriend can demand that a woman show him a picture to prove that she voted for Trump, privacy be damned.

This scenario is exactly why ballot selfies were outlawed in the first place. They provide a tool that can be used for fun reasons – “Look how I voted, Facebook Friends!” – but also for malevolent ones. The malevolent, I would argue, far outweighs the fun.

Note that you can fake things if you really want to. I made a video in 2016, when the ballot-selfie was new, about this idea. Just mark your ballot with pencil, take a picture, then erase it and make your real vote. I treated the video as a sort of joke to sidestep arguments among blowhard coworkers, but it’s not a joke for some people.

I’m afraid we’re stuck. The idea of “sharing” information online is so pervasive that we’ll never get rid of ballot selfies. They’re another way, albeit a small one, that confidence in free and fair elections is weakened.

But get out and vote, anyway. Democracy is at stake.