230
tainment Group, Inc., -“[t]he distinction
between laws burdening and laws banning
speech is but a matter of degree. The
Government’s content-based burdens must
satisfy the same rigorous scrutiny as its
content-based bans.” 529 U.S, 803, 812,
120 S.Ct. 1878, 146 L.Ed.2d 865 (2000).
Here, the law at issue is a content-based
restriction on speech that deprives voters
of one of their most powerful means of
letting the world know how they voted.
The legislature cannot avoid strict scrutiny
when it adopts such a law merely by leaving voters with other arguably less effective means of speaking on the subject.
.The Secretary also argues that the law
should not be considered a content-based
restriction on speech because paragraph II
of RSA 669:35 additionally prohibits a voter from placing “a distinguishing mark
upon his or her ballot.” See N.H.Rev.Stat.
Ann. § 659:35, II. That is, because paragraph ÍI prohibits another type of marking
on ballots, the new law barring a voter
from disclosing an image of a marked ballot is content neutral. This argument fails.
The two paragraphs simply regulate two
different categories of speech: paragraph
I regulates a certain type of speech that
ordinarily occurs outside the polling place
and paragraph II regulates what types of
markings a voter can maké on a' ballot
while in the polling place. Because paragraph I regulates speech based on the
content conveyed, paragraph II cannot
save it from being a content-based restriction on speech.
In a last-ditch effort to save the
law from strict scrutiny, the Secretary argues that completed ballots are a form of
government speech and thus do not trigger First Amendment protection at all.
He cites Walker v. Texas Division, Sons of
Confederate Veterans, which held that
Texas’s specialty license plate designs constituted government speech and thus Texas was entitled to refuse to issue plates
featuring a group’s proposed design- . —
U.S. -,
135 S.Ct. 2239, 2253, 192
L.Ed.2d 274 (2015). In reaching its decision, the Court in Walker relied on the
facts that (1) license plates “long have
communicated messages from the States,”
(2) Texas-license plate designs “are often
closely identified in the-public mind with
the State;” and (3) Texas maintains direct
control over the messages conveyed on its
specialty plates. Id, at 2248-49 (internal
quotations and alterations omitted). The
problem at issue here, however, is quite
different from the problem the Court reFirst, ballots do not
solved in Wafer.
communicate messages from the state;
they simply list slates of candidates. Second, although blank ballots may be identified with the state, there is no possibility
that a voter’s marking on a ballot will be
misinterpreted as state speech. Third,
New Hampshire, does not maintain direct
control over the messages that people convey on ballots, apart from the restriction
that they place no distinguishing mark on
their ballot. See N.H.Rev.Stat. Ann.
§ 659:35, II. Accordingly, any markings
that voters place on their ballots cléarly do
not qualify as government speech.
Although the Secretary does not press
the' point, Representative Horrigan also
suggested during debate on the new law
that it could be justified because it regulates speech at the polling place where
electioneering is not permitted. I disagree. RSA 659:35, I does not bar voters
from taking pictures of their completed
ballots before they are cast. What they
may not do is disclose images of a completed ballot to others. Because disclosure
will generally take place far away from the
polling place, the Secretary cannot prevent
the new law from being subject to strict
scrutiny by claiming that it is merely a
restriction on speech in a nonpublic forum,
where speech rights are more limited. See
e.g., Burson v. Freeman, 504 U.S. 191, 214,
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