ISO CO cn 1878. In the present case, the state has actually serves compelling state interests an obviously less restrictive way to ad- nor is it narrowly tailored to achieve those dress any concern that images of complet- interests. ed ballots will be used to facilitate vote One sitting Supreme Court Justice has buying and voter coercion: it can simply called for the lines between constitutional make it unlawful to use an image of a categories to be softened to permit judges completed ballot in connection with vote to address the competing interests that buying and voter coercion schemes. The underlie disputes siich as‘ the one at issue Secretary has failed to explain why this here more directly and with greater flexialternative would be less effective. At bility. See Reed v. Town of Gilbert, 135 most, he has offered a generalized com- S.Ct. 2218, 2234 (Breyer, J., concurring) plaint that vote buying and voter coercion (“The First Amendment requires greater are difficult to detect. This explanation, judicial sensitivity both to the Amendhowever, merely highlights the ineffective- ment’s expressive objectives and to the ness of the approach to the problem that public’s legitimate need for regulation than the legislature has adopted. Vote buying a simple recitation of categories, such as and voter coercion will be no less difficult ‘content discrimination’- and ‘strict scrutito detect if the statute remains in effect ny,’would permit.”) 'Although there are because people engaged in vote buying and sound policy reasons to allow judges- greatvoter coercion will not publicly broadcast er flexibility when analyzing First Amendtheir actions via social media. According- ment questions,--I would, not come to--a ly, rather than demonstrating that alterna- different conclusion in. this case even if I tives would be ineffective, the Secretary’s were free to more directly balance the response only demonstrates the ineffec- interests that are at-stake here. At its tiveness of the law at issue. core, this dispute turns on a claim that the Because the 2014 amendment to RSA political speech rights of voters must be 659:85, I is vastly overinclusive and the curtailed to protect the vote against those Secretary has failed to demonstrate that who would corrupt it with cash and coerless speech-restrictive alternatives will be cion. If this claim could be grounded in ineffective to address the state’s concerns, something other than speculation, it would it cannot stand to the extent that it bars be more difficult to resolve because few, if voters from disclosing images of their com- any, rights are more vital to a well-functioning democracy than either- the right to pleted ballots. speak put on political issues or-the right to IV. CONCLUSION improper invote free from coercion and The Supreme Court requires lower fluence. But the record in this case simply courts to use a categorical approach when will not support a claim that these two resolving First Amendment problems of interests áre in irreconcilable conflict. the type at issue here. Thus, the viability Neither the legislative history of the new of a challénged statute will turn on ques- law nor the evidentiary record compiled by tions such as whether the statute is “con- the parties provide support for the-view tent based,” whether it serves “compelling that voters will be either induced to sell governmental interests,” and whether it is their votes or subjected to coercion if they “narrowly tailored” to achieve those inter- are permitted to' disclose images of their ests. I have followed this approach in ballots to others. Nor is there any reason concluding that the new law is a content- to beljeve that other less restrictive means based restriction on speech that cannot could not be used -to address either probsurvive strict scrutiny because it neither lem at least as effectively as the massively