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Fall 2008 Bulletin
Election 2008
Minnesota News Organizations Granted Access for Exit Polling by Federal Judge
On Oct. 15, 2008 a federal judge issued a preliminary injunction blocking the enforcement of a Minnesota law requiring anyone not voting or registering to vote on election day to remain 100 feet away from the building where voting is being conducted.
Six news organizations: ABC, The Associated Press (AP), CBS, CNN, Fox News, and NBC, sued Minnesota Secretary of State Mark Ritchie and State Attorney General Lori Swanson on September 29, alleging that Minn. Stat. § 204C.06(1) violates their First Amendment right to conduct exit polls as long as they do not interfere with voters’ ability to vote. Federal District Judge Michael Davis’ October 15 order in ABC, Inc. v. Ritchie, No. 08-5285 (D. Minn. 2008) blocks enforcement of the statute only as it applies to exit pollsters and only until the court can resolve the underlying dispute about the statute’s constitutionality. However, the court also found that the media organizations are likely to ultimately prevail.
Davis ruled that the state law failed to satisfy all three parts of the U.S. Supreme Court’s “time, place, and manner” test for laws that restrict free expression. Under this test, the government must prove a law does not restrict expression based on its content, is “narrowly tailored to serve a significant government interest,” and leaves open ample alternatives for communication.
Minn. Stat. § 204C.06(1) states, “an individual shall be allowed to go to and from the polling place for the purpose of voting without unlawful interference. No one except an election official or an individual who is waiting to register or to vote shall stand within 100 feet of the building in which the polling place is located.”
Davis wrote that the statute is content-neutral on its face, “because it prohibits everyone who is not a voter or an election official from ‘stand[ing] within 100 feet of the building in which a polling place is located,’” regardless of their purpose for standing there. However, he observed that in crafting the law, state lawmakers explained that its purpose was to allow election officials to remove people engaged in expressive activity, such as electioneering, protesting, or other disruptive behavior, from the polling place, rather than removing any person who happened to be standing nearby. Therefore, Davis wrote, the statute constitutes an “incidental” restriction of speech and is not content-neutral.
As to whether the statute is narrowly tailored, Davis wrote that although the government interest in preventing “disruption and overcrowding” at polling places was compelling, the government provided no evidence that exit polling has ever proven to be a disruption for voters or a problem for election officials. In fact, he said, citing a 2006 case involving election day exit polling, American Broad. Co., Inc. v. Blackwell, 479 F.Supp.2d 719 (S.D. Ohio 2006), “the presence of the press at polling places would likely serve as a deterrent to fraud and intimidation” by campaigns or other disruptive groups. Davis added that the first sentence of the statute, which states, “an individual shall be allowed to go to and from the polling place for the purpose of voting without unlawful interference,” should give election officials all the authority they need to prevent disturbances without banning exit polling.
Davis lastly found that forcing exit pollsters to stay 100 feet away from polling places significantly impedes their ability to conduct accurate polling without providing them with an adequate alternative. He concluded that the news media companies’ First Amendment rights and their interest in providing to the public “accurate and valuable voter information during this historic election year” far outweighed the government’s compelling but ultimately unproven concerns about complications and disruption at the polls. He ordered the Secretary of State to notify county auditors and election officials that the news organizations and their agents are allowed to conduct exit polling, provided their actions do not violate state or federal law and they do not unlawfully interfere with voters’ ability to go to and from the polls.
According to the Minneapolis Star Tribune on October 16, Susan Buckley, attorney for the news organizations, called the ruling “just a wonderful opinion and a victory for the First Amendment in all respects.” Buckley said this lawsuit was the 12th to be filed in 10 states over the past 20 years against exit polling prohibitions or other restrictions. In every case, courts have ruled that they violate the First Amendment, the Star Tribune said.
The October 15 ruling is the second time that a federal judge has enjoined a Minnesota law that restricts access to polling places by pollsters or reporters. In 1988’s CBS Inc. v. Growe, 15 Med. L. Rep. 2275, (D. Minn 1988), U.S. District Judge David Doty issued an injunction against a state law that prohibited anyone within 100 feet of a polling place from asking people how they voted.
State legislators amended the law in 1989 to prohibit anyone from standing within 100 feet of a polling place, which was initially interpreted to be measured from the room where voting was taking place. Media organizations complained that some election officials interpreted the law to mean that pollsters were to remain 100 feet from the entrance to the building where voting was taking place, according to the October 15 opinion.
Davis wrote that when the media requested clarification from the Secretary of State’s office in early September, in order to prevent similar problems during the Nov. 4, 2008 general election, they were told the statute was amended effective June 1, 2008 to be measured as 100 feet from the building where voting was taking place, and that it would be enforced against exit pollsters.
– Patrick File
Silha Fellow and Bulletin Editor
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