political speech, which "occupies the core of the protection
afforded by the First Amendment,"
McIntyre, 514 U.S. at 346; see
also Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (holding
that there is a First Amendment interest in videotaping government
officials performing their duties in public places).
Ballot
selfies have taken on a special communicative value: they both
express support for a candidate and communicate that the voter has
in fact given his or her vote to that candidate.
Section
659:35,
I
reaches
and
prohibits
innocent
political speech by voters unconnected to the State's interest in
avoiding vote buying or voter intimidation.
examples
show
substantially
plainly
more
that
speech
section
than
is
government's legitimate interests."
The plaintiffs'
659:35,
necessary
I
to
"burden[s]
further
the
McCullen, 134 S. Ct. at 2535
(quoting Ward, 491 U.S. at 799); see also McIntyre, 514 U.S. at
351 (holding that, despite legitimate interest in reducing fraud,
government
could
not
impose
"extremely
broad
anonymous leafleting about ballot measures).
prohibition"
on
Indeed, several
states have now expressly authorized ballot selfies, and those
states
have
not
reported
an
uptick
in
vote
buying
or
voter
intimidation.10
10
See A.B. 1494, 2015-16 Reg. Sess. (Cal. 2016) (enrolled
Aug. 26, 2016) (amending statute to provide that "[a] voter may
voluntarily disclose how he or she voted if that voluntary act
does not violate any other law"); S.B. 1287, 52d Leg., 1st Reg.
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