231
112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (Scalia, J., concurring in the. judgment) (arguing that viewpoint-neutral restrictions on
speech in the vicinity of polling places
should not be subject to strict scrutiny
because they restrict speech in what is
traditionally a nonpublic forum).
For similar reasons, a law that
restricts a person’s ability to tell others
how he has voted is not exempt from strict
scrutiny merely because the ballot'itself is
a nonpublic forum. See, e.g., Timmons v.
Twin Cities Area New Party, 520 U.S.
351, 363, 117 S.Ct. 1364, 137 L.Ed.2d 589
(1997) (“Ballots serve primarily to elect
candidates, not as forums for political expression”); The law at issue here does not
restrict what a voter may write on his
ballot; it regulates the way in which he
can disclose his vote to others. Thus, the
nonpublic forum doctrine cannot, be invoked to save the law from strict scrutiny
because the speech that the law restricts
necessarily occurs in forums that the government does not own or control. To illustrate the point, consider a law that bens
public discussion of what is said at a candidate debate held by a public broadcaster.
Is there any doubt that such a law would
be subject to strict scrutiny even though
the Supreme Court has held that the debate itself occurs in a nonpublic forum?
See Ark Educ. Television Comm’n v.
Forbes, 523 U.S. 666, 680, 118 S.Ct. 1633,
140 L.Ed.2d 875 (1998) (debate conducted
by a public broadcaster is a nonpublic fo7. In his brief, the Secretary characterized the
state’s interests in three different ways, apparently dependent upon which level of scrutiny
applies. First, asserting that the law is content neutral, he argued that the law furthers
"the important governmental 'interest of ensuring the purity and integrity of our elections.” Doc. No. 22-1 at 2 (emphasis added).
Second, applying the standard for contentneutral restrictions on speech, the Secretary
identified the state’s ''significant, interest in
thwarting one party's ability to confirm how
rum). Obviously not. For the same reasons, the. law at issue here is not -exempt
from strict scrutiny merely because the
ballot itself is a nonpublic forum.
B.
Strict Scrutiny
Because the 2014 amendment to
RSA ‘659:35, I is a content-based restriction on speech; it can stand only if it-survives strict scrutiny, “'which requires
the Government to prove that the restriction furthers a compelling interest and is
narrowly tailored to achieve that interest'.’” Reed, 135 S.Ct. at -2231 (quoting
Ariz. Free Enter., 131 S.Ct. at 2817). The
Secretary bears the' burden of establishing
both requirements. See id. As I explain
below, he has faded to meet his burden on
either part of the strict scrutiny test.
1. State'Interests
The Secretary argues that a ban on
displays of completed ballots serves the
state’s compelling interest in preventing
vote buying and voter coercion.7 While
both interests are plainly compelling in the
abstract, the mere assertion of such interests cannot sustain a content-based speech
restriction.
For an interest to be sufficiently
compelling, the state must demonstrate
that jt. addresses . an actual problem.
Brown v. Entm’t Merchs. Ass’n, 564 U.S.
786, 131 S.Ct. 2729, 2738, 180 L.Ed.2d 708
(2011) (“The state must specifically identianother party'has voted thereby making it
impossible for a party purchasing a vote to
visually confirm'the vote that is being purchased.” Id. at 8 (emphasis added). Finally,
he argued that even if strict scrutiny applies,
"preventing voter intimidation and election
fraud is a compelling interest.” Id. at 14
(emphasis added). Collectively, these three
characterizations address two interests: presenting vote buying and preventing voter
coercion. I treat-these two interests as the
government’s asserted interests.--
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