The often-amusing absurdity of election law revealed itself in New Hampshire last week when Judge Paul Barbadoro ruled that the state’s law banning “ballot selfies” violated the First Amendment.
In case you’re wondering, a ballot selfie is when a person goes to vote and takes a picture of his ballot. Some people do it as a matter of civic pride, others do it as a statement of political revolt, and many are just having fun.
But reformers smell corruption. Last week, noted election law professor and reform proponent Rick Hasen penned a commentary explaining that allowing citizens to take ballot selfies constitutes “tools to corrupt the voting process.” You just can’t make this stuff up.
Moving past bouts of snorts, grunts, and amusement over Hasen’s argument—that a ban on ballot selfies is a necessary and constitutional way to prevent vote buying—the actual case reveals the absurdity of his argument. One plaintiff, Andrew Langlois, wrote in the name of his recently deceased dog, “Akira,” and took a photo of his ballot. In later posting that same ballot on Facebook, he noted that because “all of the candidates SUCK, I did a write-in of Akira . . . .” Despite the severe unlikelihood that anyone would pay Langlois to vote for his deceased dog, the New Hampshire Attorney General’s office found this offense serious enough to launch an investigation.
Other plaintiffs in the case were actual candidates running for office, or write-ins. One learned about the Attorney General’s investigating ballot selfies and posted his own to Facebook with the title “Come at me, bro.” The sponsor of the law in question didn’t care to be challenged to an Urban Dictionary brawl and filed a complaint forthwith. The same department investigating dead-dog selfies found the time and earnest conviction to launch a concurrent investigation.
This is the face of election law in America today. Reformers fear corruption beneath every dead dog, every Facebook post challenging their munificent wisdom, and every individual act of expression that hasn’t been sanctioned by election bureaucrats. Such censorship undermines the very democracy reformers claim to defend. Furthermore, in the reform lobby’s tireless search for corruption behind innocent acts, it downplays the important kind of corruption most Americans care about.
Take the famous example of former Congressman Jefferson who hid some $90,000 in his freezer after having created an elaborate bribery scheme. Anti-bribery laws, honest services laws, fraud, and money laundering laws all properly capture this sort of crooked behavior no one supports. But campaign finance and election reform takes these common sense prohibitions and investigates dead dogs, neighborhood political clubs, and average Americans wanting to have their voice heard.
As we roll into the 2016 election cycle, it is certain that scores of gun clubs, environmentalists, and political amateurs will be investigated due to simple mistakes. Reformers will smell corruption. And if we wonder why Americans show apathy toward civic engagement, politics, and voting, we might examine the absurd zeal of reform efforts that investigate ballots memorializing dead dogs. Eliminating the countless hurdles of regulatory barriers imposed by reformers might be just what America needs to reinvigorate our political process.