CHAPTER 82

HB 366-FN – FINAL VERSION

6Feb2014… 2223h

25Mar2014… 1051h

2014 SESSION

13-0679

03/09

HOUSE BILL 366-FN

AN ACT relative to showing a ballot.

SPONSORS: Rep. Horrigan, Straf 6

COMMITTEE: Election Law

AMENDED ANALYSIS

This bill adds the acts of a voter allowing his or her marked ballot to be seen and a voter distributing or sharing a photograph or digital image of his or her marked ballot to the prohibitions on showing or specially marking ballots. This bill changes the penalty for willful violations of the prohibitions from a misdemeanor to a violation. This bill also requires posters at each polling place highlighting the prohibitions on showing or specially marking ballots.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

6Feb2014… 2223h

25Mar2014… 1051h

13-0679

03/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Fourteen

AN ACT relative to showing a ballot.

Be it Enacted by the Senate and House of Representatives in General Court convened:

82:1 Showing or Specially Marking Ballot. Amend RSA 659:35 to read as follows:

659:35 Showing or Specially Marking Ballot.

I. No voter shall allow his or her ballot to be seen by any person with the intention of letting it be known how he or she is about to vote or how he or she has voted except as provided in RSA 659:20. This prohibition shall include taking a digital image or photograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.

II. No voter shall place a distinguishing mark upon his or her ballot nor write in any name as the candidate of his or her choice with the intention of thereby placing a distinguishing mark upon [his] the ballot.

III. No voter shall use or attempt to use any ballot not given him or her by the ballot clerk to accomplish any of the acts or purposes prohibited by paragraph I or II or both.

IV. Any person willfully violating any of the provisions of this section shall be guilty of a [misdemeanor] violation.

V. Before each state election, the secretary of state shall prepare and distribute to the town and ward clerks a sufficient number of posters measuring 8-1/2 inches by 11 inches highlighting the provisions of paragraphs I through IV.

VI. Each town and ward clerk shall prominently post the posters referred to in paragraph V at each polling place in his or her town or ward.

82:2 Effective Date. This act shall take effect September 1, 2014.

Approved: June 11, 2014

Effective Date: September 1, 2014

HB 366-FN – AS INTRODUCED

2013 SESSION

13-0679

03/09

HOUSE BILL 366-FN

AN ACT relative to showing a ballot.

SPONSORS: Rep. Horrigan, Straf 6

COMMITTEE: Election Law

ANALYSIS

This bill adds the act of a voter distributing an image of his or her marked ballot to the prohibitions on showing or specially marking ballots.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

13-0679

03/09

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Thirteen

AN ACT relative to showing a ballot.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Showing or Specially Marking Ballot. Amend RSA 659:35, III-IV to read as follows:

III. No voter shall take a digital image of his or her marked ballot and distribute the image using social media.

IV. No voter shall use or attempt to use any ballot not given him or her by the ballot clerk to accomplish any of the acts or purposes prohibited by paragraph I, [or] II, or [both] III.

[IV] V. Any person wilfully violating any of the provisions of this section shall be guilty of a misdemeanor.

2 Effective Date. This act shall take effect January 1, 2014.

LBAO
13-0679
01/15/13

HB 366-FN - FISCAL NOTE

AN ACT relative to showing a ballot.

FISCAL IMPACT:

The Judicial Council, Judicial Branch, and New Hampshire Association of Counties state this bill, as introduced, may increase state and county expenditures by an indeterminable amount in FY 2014 and each year thereafter. There will be no fiscal impact on local expenditures, or state, county, and local revenue.

METHODOLOGY:

The Judicial Council states this bill would make it a misdemeanor for voters to take a digital image of a marked ballot and distribute the image using social media. The Council assumes this bill, if passed, would result in a small number of prosecutions and a majority of those prosecutions would be brought as class B misdemeanors. Although violations of this proposed law are presumed to be class B misdemeanors, a prosecutor could file notice in advance of trial that class A misdemeanor penalties are sought. Class B misdemeanors do not carry a potential for incarceration as a penalty, and therefore do not trigger a right to counsel. To the extent that class A misdemeanor penalties might be sought, the state would be subject to expenditures of approximately $275 for each misdemeanor case handled by a public defender or contract attorney. If an assigned counsel attorney is used, the fee is $60 per hour with a cap of $1,400. The Council also states additional costs could be incurred if an appeal is filed. The public defender, contract attorney, and assigned counsel rates for Supreme Court appeals is $2,000 per case. Expenditures would increase if services other than counsel are requested and approved by the court during the defense of a case or during an appeal.

The Judicial Branch states it does not have information on which to estimate how many additional misdemeanor prosecutions may result from this proposed bill. However, the Judicial Branch has information on the costs of an average of processing such cases in the trial court. The Judicial Branch states the cost of a class B misdemeanor case in the district division of the circuit court will be $44.32 in FY 2014 and $45.84 in FY 2015. The Judicial Branch states the case cost estimates are based on data that is more than seven years old and does not reflect the changes to the courts over that same period of time or the impact these changes may have on the processing of these types of cases. However, according to the Judicial Branch, the potential for appeals makes the number of class B misdemeanors needed for a fiscal impact to the Judicial Branch in excess of $10,000 significantly fewer. 
The New Hampshire Association of Counties states, to the extent more individuals are charged, convicted, and sentenced to incarceration in a county correctional facility, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be charged, convicted, or incarcerated as a result of this bill to determine an exact fiscal impact. The average annual cost to incarcerate an individual in a county correctional facility is approximately $35,000. There is no impact on county revenue.
The Department of State reports there is no impact on Department, county, and local revenue or expenditures. 
The Department of Justice states no fiscal impact would result from this bill because any investigations and prosecutions would be absorbed within the Department's existing budget.

Testimony in favor of HB 366-FN
"AN ACT relative to showing a ballot."
Rep. Timothy Horrigan; January 29, 2013

Last fall, in late October 2012, one of the workers at my local Democratic campaign office received her absentee ballot. After she filled it out, she was about to have a photo of her ballot taken to be posted to her social media accounts. We began to worry taking such a photo might be a violation of federal and state election laws. It turns out that this may not necessarily have been a violation of the letter of the law— but it would definitely be a violation of the spirit of RSA 659:35 "Showing or Specially Marking Ballot."

Section I of that statute already states, "No voter shall allow his ballot to be seen by any person with the intention of letting it be known how he is about to vote except as provided in RSA 659:20." (RSA 659:20 allows persons with disabilities to bring an authorized helper into the voting booth.) This bill adds a section to RSA 659:35 which further protects the secrecy of the ballot by expressly forbidding voters from showing their ballot to their internet acquaintances.

The main reason this bill is necessary is to prevent situations where a voter could be coerced into posting proof that he or she voted a particular way. Two other reasons are that fake ballots could be posted under false identities, and that images on the internet could be used as a template for printing up forged ballots. Sample ballots are readily available, of course, but they are marked as such and they don't contain all the bar codes and similar markings found on real ballots.

Testimony in Favor of HB 366

"AN ACT relative to showing a ballot."

House Criminal Justice Committee; March 6, 2014

Rep. Timothy Horrigan (Strafford 6)

I filed this bill shortly after the 2012 election, after concluding that the law related to marking ballots needed to be updated to prohibit posting completed ballots on the internet. Since at least 1979, it has been illegal under RSA 635:33 to show your ballot to anyone other than an inspector of election who has been assigned to physically assist you (pursuant to RSA 659:20). It has also been illegal to put identifying markings on your ballot. There are also restrictions, going back much farther than 1979, on electioneering at the polling place, as well as on photographing and videotaping polling places.

In 2012, and also more recently, there were a number of incidents where people posted their ballots on their social media accounts. This practice in my opinion, and in the opinion of the House Election Law committee (who voted unanimously), compromises the secrecy of the ballot. That practice is arguably illegal under existing law, but this bill clarifies what's already on the books. The only thing this bill would add is that henceforth it would definitely be illegal to post a picture of your ballot even after the instant when you drop it in the ballot box. Under the current wording of the law, it's clearly illegal to publish an image of your completed ballot before you actually cast it, but the law is ambiguous about what happens when you wait till after you drop it in the ballot box.

It would also now be illegal to take a picture of your ballot with your cellphone, unless you never actually showed it to anyone else.

The full House had a memorable floor debate on this bill on February 6, 2014 after it was pulled from consent. Much of what was said that day missed the point of the bill, but in any event the bill did pass in spite of loud opposition. The bill's opponents framed this as a free speech issue, but political speech is in fact prohibited at the polling place. You absolutely have the right to engage in as much free speech as you want to beyond the boundary marked by the "No Electioneering" signs. However, the space inside that boundary is a secure space where the debate stops and the secret balloting begins. Some of the opponents made a point of posting pictures of the voting buttons during the January 6 vote. That futile gesture ignored the fact that legislators only rarely vote by secret ballot. I personally have cast just one secret-ballot vote in six years as a state representative.

Strictly speaking, the Criminal Justice's committee role is now limited to determining what the penalty should be. The bill as passed once already by the full House actually makes no changes to the existing penalty for marking the ballot: it is— and still would be— a misdemeanor. The prosecutor has the option of either a Class A or Class B Misdemeanor. The Judicial Council said in the fiscal note that violations of this law would be presumed to be Class B Misdemeanors, which do not carry the risk of incarceration.

Testimony in Favor of HB 366

"AN ACT relative to showing a ballot."

Senate Public And Municipal Affairs Committee; April 9, 2014

Rep. Timothy Horrigan (Strafford 6

I filed this bill shortly after the 2012 election, when I concluded that the law related to marking ballots needed to be updated to explicitly prohibit posting completed ballots on the internet. Since 1979, it has been illegal under RSA 639:35 to show your ballot to anyone other than an inspector of election who has been assigned to physically assist you (pursuant to RSA 659:20). It has also been illegal to put identifying markings on your ballot. There are also restrictions on electioneering at the polling place, as well as on photographing and videotaping polling places. These laws are much older than 1979: RSA 635 was a recodification of law dating back to the 19^th century. New Hampshire has used the so-called "Australian" ballot since 1891: before that time, parties printed up ballots and handed them out to their supporters.

Basically, if this bill passes, it would now be illegal to take a picture of your ballot with your cellphone, unless you never actually showed it to anyone else.

Recently, there have been a number of incidents where people posted images of their ballots on their social media accounts. This practice in my opinion, and in the opinion of the House Election Law committee (who voted unanimously), compromises the secrecy of the ballot. That practice is arguably illegal under existing law, but this bill clarifies what's already on the books. This main thing this bill would add is that henceforth it would definitely be illegal to post a picture of your ballot even after the instant when you drop it in the ballot box. Under the current wording of the law, it's clearly illegal to publish an image of your completed ballot before you actually cast it, but the law is ambiguous about what happens when you wait till after you drop it in the ballot box.

This bill has taken a long time to get to its Senate Committee hearing, as its low number implies. HB 366 was retained by the House Election Law Committee last summer: a subcommittee made extensive technical changes, but the basic intent of the bill remained the same— and the full committee unanimously approved the bill and placed it on consent. It got pulled from consent, and the full House had a memorable floor debate on this bill on February 6, 2014. There was loud opposition, but the bill did pass. The bill's opponents framed this as a free speech issue, but political speech is in fact prohibited at the polling place. You absolutely have the right to engage in as much free speech as you want to beyond the boundary marked by the "No Electioneering" signs. However, the space inside that boundary is a secure space where the debate stops and the secret balloting begins. Tweeting a picture of your ballot compromises the security of the polling place and the secrecy of the ballot.

The bill next went to the House Criminal Justice Committee as a second committee. Criminal Justice voted for an amendment to downgrade the penalty from a misdemeanor to a violation. I did not actively oppose the amendment, but I think a misdemeanor is a more effective penalty, because it gives prosecutors more time to investigate cases before bringing charges, and because in some extreme cases, showing ballots could warrant imprisonment and/or large fimes. The new high-tech methods of showing a ballot absolutely could be used to further a serious vote-buying scheme. However, I do understand why many of my fellow representatives were concerned by the possibility, however remote, of a careless blogger becoming the target of a class A misdemeanor prosecution with a penalty of up to one year's imprisonment. Be that as it may, the full House passed the amended bill which is now before the Senate Executive Departments Committee by a veto-proof 198-96 majority.

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