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In re Attorney General's "Directive on Exit Polling: Media and Non-Partisan Public Interest Groups

August 6, 2008

IN RE: ATTORNEY GENERAL'S "DIRECTIVE ON EXIT POLLING: MEDIA AND NON-PARTISAN PUBLIC INTEREST GROUPS," ISSUED JULY 18, 2007


On appeal from a Final Agency Decision of the Department of Law and Public Safety, Office of the Attorney General.

The opinion of the court was delivered by: Wefing, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 12, 2008

Before Judges Wefing, Parker and Lyons.

American Civil Liberties Union of New Jersey ("ACLU-NJ") appeals from a Directive issued by the Attorney General of the State of New Jersey on July 18, 2007, with respect to exit polling activities on election days. The Directive was issued by the Attorney General in her capacity as Chief Law Enforcement Officer and Chief Election Official of the State, and thus the matter is properly before us under Rule 2:2-3(a)(2).

The Directive, issued to County Boards of Election and County Superintendents of Election, states the following:

In my dual capacity as the State's Chief Law Enforcement Officer and Chief Election Official, you are hereby directed to permit exit polling activity by representatives of the media and non-partisan public interest groups on election days.

The following guidelines apply to all exit polling activity within 100 feet of the outside entrance to a polling place:

1. At least two weeks before an election, a representative of a media outlet or a non-partisan public interest group must submit a letter to the applicable county board of election, identifying polling place locations where the exit polling is to be conducted.

2. The county board of election must provide an authorization letter for exit polling to the media and/or non-partisan interest group. This letter is to include the procedures that are set forth in this directive.

3. Any person conducting an exit poll must display credentials, provided by the applicable county board of election, that identify his or her name and the organization that is conducting the exit polling.

4. At all times, exit polling must be conducted in a way that does not obstruct any voter or other authorized individual who is entering or leaving the polling place.

5. Exit polling must be conducted only when a voter is exiting the polling place, and the voter's participation is strictly voluntary.

6. Exit polling can be conducted within the 100 foot zone from the outside entrance to the polling place.

7. Exit polling cannot be conducted inside the polling place, including the passageway to the polling room and the room itself.

8. There can be no electioneering on behalf of any candidate, political party or group, or referendum within the 100 foot zone.

9. No campaign paraphernalia, signs or other insignia can be displayed by any person conducting an exit poll within the 100 foot zone.

10. Any person conducting an exit poll within the 100 foot zone must comply with any directive from an election official or authorized representative to assure the orderly conduct of the election.

11. Persons conducting an exit poll cannot poll, assist, or offer materials to voters entering the polling place.

The Directive was accompanied by an explanatory letter, setting forth the Attorney General's statutory and historical analysis in support of the Directive's position.

Shortly after the Directive was issued, ACLU-NJ's Legal Director wrote to the Attorney General, inquiring whether exit polling included asking voters about their experiences at the polls, as opposed to how they cast their votes. He also noted that the Directive prohibited distribution of material to those entering a polling place and inquired whether individuals conducting exit polling could distribute material such as voters' rights cards to voters who were leaving a polling place. Finally, he inquired whether individuals or organizations not engaged in exit polling or electioneering could hand out leaflets within 100 feet of a polling place to voters either entering or exiting the polling place.

The Attorney General responded that asking voters about their experiences in voting, and if they encountered any problems or barriers, did come within the term exit polling. She also stated that distribution of any material, including voters' rights cards, would not constitute exit polling and that "activity within the 100-foot protected zone is to be limited to properly credentialed exit pollsters . . . ."

The ACLU-NJ wishes to hand out to voters entering a polling place what it calls voters' rights cards, a sample of which it has attached to its brief. The card is wallet-sized and outlines in general terms who may vote, what to do if an individual is not allowed to vote, and provides a toll-free telephone number to call if problems with registration or voting have been encountered.*fn1 The card states that it is sponsored by ACLU-NJ and League of Women Voters of New Jersey. The sample does not contain any references, whether in text or in symbols, to any political party or candidate. Under the Attorney General's interpretation of the Directive, the ACLU-NJ is prohibited from distributing such card within 100 feet of the polls to voters entering or leaving the polls.

ACLU-NJ objects to the prohibition against distribution of such voters' rights cards within 100 feet of the polls and to the Directive's requirement of prior registration of those who wish to conduct exit polling. It presents four arguments in support of its position that this Directive is invalid. In sum, it contends that 1) the Directive is not statutorily authorized, 2) that even if it were, it should have been adopted in compliance with the Administrative Procedures Act ("APA"), N.J.S.A. 52:14B-1 to -25, 3) that the prohibition against the distribution of voters' rights cards violates the First Amendment, U.S. Const amend. I, and 4) that the notice and registration requirements for exit polling constitute an improper prior restraint.

The Attorney General contends in response that the Directive is entirely consistent with the applicable statutes, is constitutional and did not violate the APA.

While this appeal was pending, we granted the motion of the Public Advocate of New Jersey to appear as amicus curiae. The Public Advocate has filed a brief in which it contends, essentially, that the Directive is invalid because it was enacted ...


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