- Associated Press - Monday, June 8, 2015

CONCORD, N.H. (AP) - A federal judge on Monday sounded dubious that a New Hampshire ban on posting photos of voter ballots online was a necessary safeguard against fraud in the information age.

U.S. District Court Judge Paul Barbadoro heard arguments in a lawsuit brought by three people who are under investigation after they posted pictures of their ballots online, including one man who voted for his dead dog because he didn’t like any of the candidates. The American Civil Liberties Union took up their cause, saying the ban was an overreaching restriction on free speech.

“I think there is a serious problem with a law that bans the dissemination of truthful, public speech related to a matter of public concern,” said Gilles Bissonnette, the legal director for the ACLU’s New Hampshire chapter. “This is actually a blanket ban on a certain kind of speech.”

State lawmakers who support the bill said someone who wanted to coerce voters could insist on seeing pictures of their ballots to prove how they voted. With the proliferation of ways to share images - including Facebook, Twitter and Instagram - Assistant Attorney General Stephen LaBonte said the legislature had a legitimate concern about voter fraud.

“The ballot has always been considered secret,” he said. “This is just the state addressing the new technology.”

But under sharp questioning from Barbadoro, LaBonte acknowledged there are no known cases of vote-buying or coercion in New Hampshire.

“It has virtually disappeared in New Hampshire,” Barbadoro said.

Barbadoro also chided the notion that a vote-seller would post the evidence publicly and said the “vast, vast, vast majority” of people who posted a photo would be innocent of wrongdoing.

“You think people are going to post a photo on Facebook?” he said, sounding incredulous. “‘I’m a proud seller of my vote! I just sold my vote for $25!’ At some level, you have to use common sense.”

Bissonnette compared the law to one in Massachusetts setting up a 35-foot “buffer zone” around facilities that provide abortions. The U.S. Supreme Court struck down that law as an unconstitutional restriction on free speech.

The law makes posting a photo of a marked ballot online a violation that comes with a $1,000 fine upon conviction. It is supported by the New Hampshire Secretary of State’s Office.

Barbadoro said he will likely not issue a ruling until after the U.S. Supreme Court decides a free-speech case in Arizona related to regulation of a church’s signs.

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