and social media," which may facilitate a future rise in vote
buying and voter intimidation schemes.
As the district court noted, the prevention of vote
buying and voter coercion is unquestionably "compelling in the
abstract."
Rideout, 123 F. Supp. 3d at 231.
But intermediate
scrutiny is not satisfied by the assertion of abstract interests.
Broad prophylactic prohibitions that fail to "respond[] precisely
to the substantive problem which legitimately concerns" the State
cannot withstand intermediate scrutiny.
Members of City Council
of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 810 (1984).
Digital photography, the internet, and social media are
not unknown quantities -- they have been ubiquitous for several
election
cycles,
without
being
shown
to
have
furthering vote buying or voter intimidation.
the
effect
of
As the plaintiffs
note, "small cameras" and digital photography "have been in use
for at least 15 years," and New Hampshire cannot identify a single
complaint of vote buying or intimidation related to a voter's
publishing a photograph of a marked ballot during that period.
Indeed, Secretary Gardner has admitted that New Hampshire has not
received any complaints of vote buying or voter intimidation since
at least 1976, nor has he pointed to any such incidents since the
nineteenth century.
"[T]he government's burden is not met when a
'State
evidence
offer[s]
restriction.'"
no
or
anecdotes
in
support
of
its
El Día, Inc. v. P.R. Dep't of Consumer Affairs,
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