NEWS2 October 2009

Exit surveys banned within 100 feet of NJ polling places

Legal North America

US— New Jersey’s supreme court this week reintroduced a ban on exit polling within 100 feet of state polling places, overturning an attorney general directive that allowed news media to survey voters after they had cast their ballots.

State election law bars all ‘expressive activity’ within the area near a polling place, but exit pollsters were granted an exemption in 1988 after the attorney general decided that the news media possessed a First Amendment right to conduct exit polling in that zone.

In 2007 that exemption was widened to include exit polling by non-partisan entities, but the American Civil Liberties Union (ACLU) sought clarification of whether voting-rights cards could also be distributed within the buffer zone – to which the attorney general replied that they could not.

The ACLU took the matter to appeal, the attorney general’s decision was upheld. The organisation then sought a review by the supreme court.

In its decision this week, the court found that the attorney general “did not have a constitutionally sound basis to breach the election laws by allowing exit polling”.

“The ACLU… contend that if exit polling is permitted, so must the dissemination of voting-rights materials,” wrote Justice Barry Albin on behalf of the court. “The inexorable logic of the argument… leads to the substitution of the 100-foot zone for a no man’s land of pollsters, protesters and peddlers on Election Day.

Justice Albin concluded: “The simple solution is that our election laws, which are content-neutral, non-discriminatory, and, as we have declared, constitutional, must be enforced as they were written, barring all expressive activity within the area near a polling place. Therefore, exit polling, the dissemination of voting-rights materials and other expressive activities are forbidden in the 100-foot zone.”

Media companies may seek to challenge the New Jersey ban, however. Ahead of the presidential elections in November last year a group of news organisations successfully overturned similar exit polling restrictions in a number of states including Minnesota and South Dakota.