restrictions are subject to intermediate scrutiny, which demands
that
the
law
governmental
be
"narrowly
interest."
tailored
Id.
to
serve
"[U]nlike
a
a
significant
content-based
restriction of speech, [a content-neutral regulation] 'need not be
the least restrictive or least intrusive means of' serving the
government's interests."
McCullen v. Coakley, 134 S. Ct. 2518,
2535 (2014) (quoting Ward, 491 U.S. at 798).
We reach the conclusion that the statute at issue here
is
facially
scrutiny.
4
unconstitutional
even
applying
only
intermediate
See, e.g., McCutcheon v. Fed. Election Comm'n, 134
S. Ct. 1434, 1446 (2014)("Because we find a substantial mismatch
between the Government's stated objective and the means selected
to achieve it, the aggregate limits fail even under the 'closely
drawn' test.
We therefore need not parse the differences between
the two standards in this case.").
Like in McCutcheon, there is
a substantial mismatch between New Hampshire's objectives and the
ballot-selfie prohibition in section 659:35, I.5
4
The district court chose to rely on reasoning that
section 659:35, I is a content-based restriction. Rideout, 123
F. Supp. 3d at 229. To reach this conclusion, it relied heavily
on the Supreme Court's recent decision in Reed. Id. at 228–29.
Secretary Gardner vigorously contests this conclusion.
As the
statute fails even intermediate scrutiny, we need not resolve the
question of whether section 659:35, I is a content-based
regulation.
5
Because the statute fails under intermediate scrutiny,
we also need not reach the plaintiffs' argument that the statute
fails under the overbreadth doctrine. See, e.g., United States
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