Posting a photo of your election ballot on Facebook might be against the law

When Andrew Langlois went to the ballot box to vote in New Hampshire’s primary election last year, he was uninspired by the choices before him in the U.S. Senate race. So he decided instead to write in Akira, the name of his dog, who had passed away a few weeks earlier.

“I really thought my dead dog would do a better job than anyone on the ballot,” Langlois told Fusion. “That was the most generous animal ever…the most taxation she’d ever impose on anybody is a little bit of their breakfast.”

He posted a photo of his ballot on Facebook to show his friends. But within days, Langlois got a phone call from an investigator at the state Attorney General’s office who told him it was against the law to share an image of his marked ballot on social media. “I thought it was a joke,” Langlois said.

It wasn’t. Under New Hampshire law, posting a photo of your ballot online is a violation punishable by up to a $1,000 fine. Intended to combat vote-buying, the law targeted what Langlois says was his political speech.

With help from the ACLU, Langlois and two other New Hampshireites sued the state and won. A federal judge overturned the law earlier this month.

Yesterday, the ACLU filed a lawsuit challenging a similar new law in Indiana that makes sharing a photo of your marked ballot a low-level felony. Meanwhile, other states are considering their own measures. Legal experts are debating whether these laws unnecessarily limit political expression or help protect against the corruption of our elections.

The rise of so-called “ballot selfies”—some photos are actually a selfie with a person holding their ballot, others are just a photo of the marked ballot—has peaked as more people bring their smartphones with them to the polls. It’s become a typical social media post for first-time voters or those like Langlois hoping to send a political message. When news of the anti-ballot selfie law spread in New Hampshire, people there posted photos of their ballots in a Facebook group.

It appears that after the New Hampshire court decision, Indiana is the only state in the country that explicitly bans the sharing of ballot selfies online. But a majority of states have decades-old election laws preventing the photography or sharing of ballots that could be interpreted to ban the practice, said Gilles Bissonnette, the Legal Director of the ACLU’s New Hampshire chapter.

These kind of laws originally date from the 1800s, when the secret ballot was introduced state by state in order to stem a rise in vote-buying and political machines. While it’s not as widespread an issue in 2015, some argue that protections are still needed. Richard Hasen, a prominent elections scholar, wrote in Reuters last week that anti-ballot selfie laws are “a modest way to make sure that this patriotic expression does not give anyone the tools to corrupt the voting process.”

“Just because we haven’t had vote buying as a clear issue today, [it was] definitely an issue from the past,” Pete Miller, the state senator who authored the Indiana bill, told the Indianapolis Star. “We don’t want to say, ‘No one’s vote buying, so we’ll just not do anything.’”

But rights advocates say that argument doesn’t make sense. “Voter coercion and vote buying are already illegal,” Bissonnette told Fusion. “The law swept within its scope innocent political speech that had nothing to do with a vote-buying scheme.”

Legislators in Minnesota are debating passing a similar bill banning ballot selfies; Maine, Oregon, and Utah have revised their elections rules in recent years to explicitly allow the photography and sharing of ballots.

The New Hampshire decision striking down the ballot selfie law relied on Reed v. Town of Gilbert, a Supreme Court decision from two months ago which received little attention compared to the blockbuster same-sex marriage and Affordable Care Act cases but, legal scholars say, will likely have wide-ranging effect. The decision, in a case about an obscure Arizona sign regulation, made it dramatically harder for many laws regulating speech to pass constitutional muster. Now, laws that single out a specific topic, idea, or message for regulation—such as a photo of your marked ballot—require a higher level of judicial scrutiny.

State officials in New Hampshire haven’t decided whether they will appeal the court decision overturning the ballot selfie law. But Langlois says he thinks the judge made the right choice.

“I never really thought that voting for my dog would turn into this,” he said.