Taking a picture of your ballot at the polls is fun and patriotic but illegal in South Dakota.
Judge Paul Barbadoro of the U.S. District Court of New Hampshire ruled Tuesday that banning such “ballot selfies” is unconstitutional:
A U.S. District Court judge on Tuesday struck down the state law banning “ballot selfies,” calling the prohibition “a content-based restriction on speech that cannot survive strict scrutiny.”
…The ruling by Judge Paul Barbadoro is a victory for the American Civil Liberties Union of New Hampshire, which brought the lawsuit on behalf of three voters who posted images of their completed ballots on social media sites after the Sept. 9 primary [Dave Solomon, “Judge Strikes Down NH ‘Ballot Selfie’ Ban,” New Hampshire Union-Leader, 2015.08.11].
The state can restrict First Amendment rights (remember, you can’t walk into the polls and “electioneer”—i.e., shout slogans or hand out flyers for your favorite candidate), but only if it can demonstrate a compelling interest in such restriction:
…In striking down the law, Barbadoro ruled that the state had failed to demonstrate any compelling interest in preventing people from showing others how they voted via social media.
“The Secretary of State … produced no evidence that either vote-buying or voter coercion are current problems in New Hampshire,” he wrote. “The Secretary (of State) has failed to identify a single instance anywhere in the United States in which a credible claim has been made that digital or photographic images of completed ballots have been used to facilitate vote-buying or voter coercion” [Solomon, 2015.08.11].
The South Dakota statute that prohibits showing your marked ballot to anyone (SDCL 12-18-27) does not explicitly mention Tweeting your ballot. The New Hampshire ruling struck down a 2014 amendment to that state’s no-show-ballot law that prohibited a voter from “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.” A U.S. District Court ruling in New Hampshire does not overturn South Dakota law, but this ruling suggests that South Dakota cannot ban our proud display of our ballots to our Facebook friends.