Bob Newland makes minor trouble again. On Facebook, the longtime Libertarian posts his early ballot, showing that he voted for the Johnson-Weld Presidential ticket, then voted Democratic for everything else. (Thanks, Bob!) He then voted yes on four ballot measures: Amendment T, Amendment V, Initiated Measure 21, and Referred Law 19.
District 9 then chimes in to razz Newland for posting the picture of his ballot:
Bret Clanton jumps into the comment section to provide the statute Newland violates:
No person may show a ballot after it is marked to any person in such a way as to reveal the contents of the ballot, or the name of any candidate for whom the person has marked a vote. Nor may any person solicit the voter to show the voter’s ballot. Immediately after marking the ballot the voter shall fold and refold the ballot, if necessary, leaving the official stamp exposed [SDCL 12-18-27].
If Newland does get an invitation from Attorney General Marty Jackley to the courthouse, Newland should follow through with his promise to take it to the Supreme Court. He will likely win. A federal court overturned New Hampshire’s ban on “ballot selfies” in 2015; just a couple weeks ago, the First U.S. Circuit Court of Appeals upheld that ruling, saying that the state has failed to demonstrate a single instance of “vote buying or intimidation related to a voter’s publishing a photograph of a marked ballot” in the age of social media. Absent some compelling public concern, the state cannot abridge our First Amendment right to display our marked ballots.
The First Circuit’s decision only covers New Hampshire, Massachusetts, and Maine. But if A.G. Jackley decides to throw the South Dakota book at Newland, the New Hampshire ruling suggests the court will intercept and remove a page from that book. Of course, the South Dakota statute specifies no penalty for ballot selfies, so A.G. Jackley may see no reason to bother.