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Petition for a Writ of Certiorari Filed

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Petition for a Writ of Certiorari Filed No. _________ ================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- WILLIAM M. GARDNER, in his official capacity as Secretary of State of the State of New Hampshire, Petitioner, v. LEON H. RIDEOUT, ANDREW LANGOIS, and BRANDON D. ROSS, Respondents. --------------------------------- --------------------------------- On Petition For Writ Of Certiorari To The United States Court Of Appeals For The First Circuit --------------------------------- --------------------------------- PETITION FOR WRIT OF CERTIORARI --------------------------------- --------------------------------- JOSEPH A. FOSTER New Hampshire Attorney General LAURA E. B. LOMBARDI* Senior Assistant Attorney General New Hampshire Department of Justice 33 Capitol Street Concord, NH 03301-6397 Phone: (603) 271-3675 [email protected] STEPHEN G. LABONTE Assistant Attorney General Counsel for Petitioner *Counsel of Record ================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM i QUESTIONS PRESENTED In 2014, New Hampshire amended N.H. Rev. Stat. Ann. (RSA) § 659:35, I, to address the potential harm caused by the use of recent technology in voter coercion and vote buying schemes. The amendment prohibited a voter from allowing “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.” The prohibi- tion expressly included “taking a digital image or pho- tograph of his or her marked ballot and distributing or sharing the image via social media or by any other means.” The questions presented are: 1. Whether N.H. RSA 659:35, I, is narrowly tailored to serve a significant governmental interest, thus passing intermediate scrutiny. 2. Whether any restriction placed on speech by N.H. RSA 659:35, I, is content-neutral. 3. Whether N.H. RSA 659:35, I, serves a compelling governmental interest and is nar- rowly tailored to achieve that interest, thus passing strict scrutiny. ii PARTIES TO THE PROCEEDING The Petitioner is William M. Gardner, in his offi- cial capacity as Secretary of State for the State of New Hampshire. The Respondents are Leon H. Rideout, Andrew Langois and Brandon D. Ross. There are no other par- ties to this proceeding. iii TABLE OF CONTENTS Page QUESTIONS PRESENTED .................................. i PARTIES TO THE PROCEEDING ........................ ii TABLE OF CONTENTS ........................................ iii TABLE OF AUTHORITIES ................................... iv PETITION FOR A WRIT OF CERTIORARI ......... 1 OPINIONS BELOW ............................................... 1 JURISDICTION ..................................................... 1 CONSTITUTIONAL AND STATUTORY PROVI- SIONS INVOLVED ............................................. 2 STATEMENT OF THE CASE ................................ 3 REASON TO GRANT THE PETITION ................. 6 This Case Presents Important Issues of Consti- tutional Law Which Should Be Settled By This Court .................................................................... 6 CONCLUSION ....................................................... 14 APPENDIX United States Court of Appeals for the First Cir- cuit, Opinion, September 28, 2016 .................. App. 1 United States District Court for the District of New Hampshire, Memorandum and Order, August 11, 2015 .............................................. App. 22 iv TABLE OF AUTHORITIES Page CASES Burson v. Freeman, 504 U.S. 191 (1992) ..... 6, 10, 11, 12 Crookston v. Johnson, 2016 U.S. App. LEXIS 19494 ......................................................................... 9 Hill v. Williams, 2016 U.S. Dist. LEXIS 155460 ........ 10 McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) ......................................................................... 7 Munro v. Socialist Workers Party, 479 U.S. 189 (1986) ....................................................................... 12 Reynolds v. Sims, 377 U.S. 533 (1964).......................... 6 Rideout v. Gardner, 123 F. Supp. 3d 218 (D.N.H. 2015) .......................................................................... 1 Rideout v. Gardner, 838 F.3d 65 (2016) ........................ 1 Silberberg v. Bd. of Elections of N.Y., 2016 U.S. Dist. LEXIS 152784 .............................................. 8, 9 Wesberry v. Sanders, 376 U.S. 1 (1964) ........................ 6 CONSTITUTIONAL PROVISIONS U.S. Const., amend. I .................................... 2, 5, 10, 12 U.S. Const., amend. XIV, sec. 1 ..................................... 2 STATUTES 28 U.S.C. § 1254(1) ........................................................ 1 42 U.S.C. § 1983 ............................................................ 5 1911 N.H. Laws Ch. 102, Sec. 2 .................................... 7 v TABLE OF AUTHORITIES – Continued Page RSA 659:20 ............................................................... 3, 4 RSA 659:35, I .................................................. 2, 4, 8, 12 RSA 659:35, II ............................................................... 3 OTHER AUTHORITIES Katie Rogers, Are Selfies With Your Ballot Legal? Depends on Where You Vote, The New York Times (Nov. 8, 2016) at http://www.nytimes. com/2016/11/09/us/politics/ballot-selfies.html .......... 8 1 PETITION FOR A WRIT OF CERTIORARI William M. Gardner, in his official capacity as Sec- retary of State for the State of New Hampshire re- spectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the First Circuit. --------------------------------- --------------------------------- OPINIONS BELOW The opinion of the United States Court of Appeals for the First Circuit in this matter is reported as Rideout v. Gardner, 838 F.3d 65 (2016) (App. 1).1 The opinion of the United States District Court for the District of New Hampshire in this matter is re- ported as Rideout v. Gardner, 123 F. Supp. 3d 218 (D.N.H. 2015) (App. 22). --------------------------------- --------------------------------- JURISDICTION Judgment of the First Circuit was entered on September 28, 2016. This petition for certiorari is filed within 90 days of the issuance of that judgment. This Court has jurisdiction under 28 U.S.C. § 1254(1). --------------------------------- --------------------------------- 1 “App.” refers to the appendix to this petition and page num- ber. 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The First Amendment to the United States Con- stitution provides as follows: Congress shall make no law respecting an es- tablishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the peo- ple peaceably to assemble, and to petition the Government for a redress of grievances. The Fourteenth Amendment to the United States Constitution, Section 1, provides as follows: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. RSA 659:35, I, as amended by HB 366, provides as follows: No voter shall allow his or her ballot to be seen by any person with the intention of let- ting it be known how he or she is about to vote or how he or she has voted except as provided 3 in RSA 659:20.2 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. (Footnote added). RSA 659:35, II, provides as follows: 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 the ballot. --------------------------------- --------------------------------- STATEMENT OF THE CASE At the heart of this case lies the authority of the New Hampshire Legislature to proactively amend its current statutory scheme in order to protect the purity and integrity of the State’s election process in light of the dynamic changes made by technology over the past 2 RSA 659:20 states: “Any voter who declares to the modera- tor under oath that said voter needs assistance marking his or her ballot shall, upon the voter’s choice and request after the moder- ator has informed the voter of the accessible voting options that are available at the polling place, receive the assistance of one or both of the inspectors of election detailed for that purpose by the moderator or of a person of the voter’s choice provided that the person is not the voter’s employer or union official. Such person so assisting shall be sworn, shall mark the ballot as directed by said voter, and shall thereafter give no information regarding the same. Such person so assisting shall leave the space within the guardrail with the voter.” 4 quarter century. In 2014, the New Hampshire Legisla- ture amended N.H. Rev. Stat. Ann. (RSA) § 659:35, I, to ensure that the voters of New Hampshire can cast their votes free from the threat of reprisal, ensuring that elections in
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