Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

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

September 30, 2009

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


On certification to the Superior Court, Appellate Division, whose opinion is reported at 402 N.J. Super. 118 (2008).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The Court considers challenges by the American Civil Liberties Union of New Jersey (ACLU) both to an Attorney General directive requiring those conducting exit polling to register with election officials two weeks before an election, and to the Attorney General's denial of a request to distribute "voting-rights cards" within 100 feet of a polling place.

In 1972, the Attorney General rendered an opinion stating that exit polling within 100 feet of a polling place on Election Day would violate New Jersey's election laws, N.J.S.A. 19:34-6, -7, and -15. The 1972 Opinion declared that our election laws are intended to provide voters with "complete freedom of movement entering and leaving the polls" and to prohibit any person, including a news reporter, from "solicit[ing] any voter within one hundred feet of the entrance to the polling place." The Attorney General considered "[t]he mere solicitation of a voter's views through exit polling . . . to constitute an impermissible obstruction prohibited by N.J.S.A. 19:34-6, -7 and -15." In 1988, the Attorney General reversed course and advised that the news media possessed a First Amendment right to conduct exit polling within 100 feet of a polling place. The Attorney General did not address the right of non-media persons and entities to conduct exit polling within the prohibited zone.

In 2006, the Attorney General advised county election officials that non-partisan public interest groups would be permitted to conduct exit polling and distribute voting-rights cards within 100 feet of the outside entrance of a polling place, and circulated a draft directive setting forth proposed guidelines. After eliciting comments, the Attorney General's Directive was issued on July 18, 2007. The Directive permitted exit polling by both media and non-partisan entities within 100 feet of a polling place, but prohibited the distribution of "materials" to voters within the 100-foot zone. In part, the Directive required that representatives of the media or public interest groups submit a letter to the appropriate board of election at least two weeks prior to the election identifying polling place locations where exit polling was to be conducted, and the county board of election would provide an authorization letter. Along with other requirements, the Directive prohibited electioneering on behalf of any candidate, party, group or referendum, and further prohibited persons conducting exit polling from polling, assisting, or offering materials to voters entering the polling place.

The ACLU sought clarification of the 2007 Directive, inquiring from the Attorney General whether exit polling included questions about voters' experiences at the polls, whether voting-rights cards could be distributed to exiting voters, and whether organizations that were not electioneering or exit polling could pass out leaflets for events such as an upcoming peace vigil or a bake sale. The Attorney General responded that within the 100-foot zone, voters could be questioned about their voting experience as part of exit polling, the distribution of materials such as know-your-rights pamphlets would not be permitted, and only those who were "properly credentialed exit pollsters" would be permitted within the zone. The ACLU filed a Notice of Appeal.

The Appellate Division upheld the Attorney General's 2007 Directive requiring that media and non-partisan public interest groups notify the appropriate county board of election two weeks in advance of an election of their intent to conduct exit polling within 100 feet of a polling place. The panel also upheld the Attorney General's authority to prohibit the handing out of voting-rights cards within the 100-foot exclusionary zone and agreed that the applicable election-law statute, N.J.S.A. 19:34-15, barred the distribution or display of any material, including voting-rights cards, within the zone. Finally, the panel concluded that the prohibition on the distribution of voting-rights cards within the zone and the notification and authorization requirements imposed on pollsters were not undue infringements on the constitutional right to expressive activity. 402 N.J. Super. 118 (2008).

The Supreme Court granted the ACLU's petition for certification. 196 N.J. 599 (2008).

HELD: New Jersey's election law statutes direct that voters will have a 100-foot free, unobstructed passage to polling places, without interference from any person, and this ban applies to all expressive activities within the 100-foot zone, including exit polling and handing out voting-rights cards. The election laws are constitutional because they are reasonable time, place, and manner restrictions under the First Amendment intended to secure and enhance another vital constitutional right-the right to vote.

1. Examining the plain language of New Jersey's election-law statutes, the Court notes that N.J.S.A. 19:34-6(a) and -7 prohibit activities such as obstructing, soliciting, and interfering with a voter, as well as electioneering and loitering, within 100 feet of a polling place on Election Day. The Court explains that the words obstructing, soliciting, and interfering with a voter, as well as loitering, encompass activities far broader than electioneering and evince an intent to provide voters with unobstructed and free passage as they walk the last 100 feet into a polling place. The Court determines that the 100-foot obstruction-free zone does not allow for any activity that would interfere with a voter's passage, including exit polling, handing out voting-rights cards, haranguing voters on important issues of the day, or making commercial sales pitches. Additionally, the Court notes that N.J.S.A. 19:34-15 makes it a disorderly persons offense to, among other things, distribute or display printed matter supporting any candidate, party, or public question within the 100-foot zone or polling place. The Court determines that New Jersey's election-law statutes, when read together and when their words are given their plain meaning, manifest a comprehensive scheme to bar all expressive activity within 100 feet of a polling place on Election Day. The Court points out that the Attorney General in 1972 issued an opinion that reached the same conclusion. (Pp. 14-19).

2. The Court reviews the history behind New Jersey's election laws, including legislation going back to the 19th Century that addressed voter intimidation and fraud, and election reform legislation that was passed into law in 1930 that ensured a limited zone outside a polling site to protect voters from interference. This history buttresses the Court's finding that New Jersey's current laws manifest the Legislature's intent to make the prohibitions on expressive activity within the 100-foot zone all encompassing. (Pp. 19-23).

3. The Court finds that N.J.S.A. 19:34-6, -7, and -15 were adopted to ensure a minimal level of order and decorum and to reduce the potential for fraud, coercion, and confusion outside polling precincts on Election Day. The broad language of these election laws demonstrates that the Legislature never intended in the last 100 feet leading to the polling place for a voter to have to run, or walk, a gauntlet of hawkers, hustlers, and protesters, or even pollsters shouting questions and voting-rights advocates handing out cards. The Court concludes that New Jersey's statutes bar both exit polling and the handing out of voting-rights cards within 100 feet of a polling site. (Pp. 23-25).

4. Next, the Court decides whether barring activities such as exit polling and the handing out of voting-rights cards within 100 feet of a polling site violates the First Amendment. In analyzing this question, the Court is required to balance fundamental constitutional rights-the right to vote and the rights of free speech and freedom of the press. The First Amendment guarantees freedom from government suppression of speech or censorship. However, like most rights, the rights protected by the First Amendment are subject to reasonable restrictions. A statute may restrict the time, place, and manner of protected speech or expressive activity in a public forum so long as the restrictions pass a three-part test. First, the restrictions must be justified without reference to the content of the regulated speech. Second, the restrictions must be narrowly tailored to serve a significant governmental interest. Finally, the restrictions must leave open ample alternative channels for communication of the information. (Pp. 25-27).

5. With regard to the first element of the test, the Court finds that New Jersey's election laws, as written, are entirely content-neutral, forbidding all expressive speech. The laws create a 100-foot unobstructed, protected pathway to a polling place for voters on Election Day, in which no person may solicit a voter or interfere or engage in any expressive activity with a voter. The laws do not discriminate between permissible and non-permissible forms of speech. With regard to the second part of the test, the Court finds that New Jersey's election laws are narrowly tailored to serve the significant government interest of promoting the constitutional right to vote and ensuring the reliability and integrity of the electoral process by establishing a limited obstacle-free zone for citizens casting their vote. Barring all activity-including expressive activity-within 100 feet of a polling place is the best means to protect voters from untoward interference and is the most effective and manageable means for election officials to insulate voters from tactics that might influence them or even dissuade them from coming to the polls. It also takes those officials out of the business of acting as censors, determining what forms of speech would be acceptable outside of a polling precinct. Finally, barring all expressive activities within 100 feet of a polling place leaves open ample alternative channels for communication of the information. Exit pollsters and voting-rights advocates can operate at a distance of 101 feet from a polling site, conduct telephone surveys of people who live within a polling precinct, and hold up signs and pennants carrying their messages. In addition, since the restrictions apply only to Election Day, voting-rights advocates have an entire year to educate the public. The drafters of New Jersey's election laws came to the determination that any interference with a voter near a polling place, whatever the motivation, whether political, non-partisan or charitable, is too great an infringement on the constitutional right to vote. The Court concludes that N.J.S.A. 19:34-6, -7, and -15 do not suppress expressive speech, but rather are reasonable time, place, and manner restrictions that accommodate competing constitutional rights-the right to vote and the rights of freedom of speech and freedom of the press. (Pp. 27-36).

6. The Court explains that even though exit polling is accorded constitutional protection as an expressive activity and plays an important role in providing societal and demographic information to the public, it is not entitled to preferential treatment under the First Amendment. The Court notes that political speech arguably has a higher claim to First Amendment protection because it is at the core of what the First Amendment was designed to protect, yet political speech can be constitutionally curtailed within 100 feet of a polling site. Furthermore, a basic tenet of all elections is the right of a voter to cast a secret ballot, and yet, under the Attorney General's Directive, exit pollsters may stand immediately outside a polling place and pose questions about how a voter cast a ballot. The closer a pollster is positioned to a polling site the more likely a voter entering the site may be inadvertently or involuntarily exposed to another voter's ballot choices. The Attorney General did not have a constitutionally sound basis to breach the election laws by allowing exit polling, and if the Court sanctioned exit polling, there is no persuasive argument for precluding other forms of expressive activity within the 100-foot exclusionary zone. (Pp. 36-41).

7. New Jersey's election laws, N.J.S.A. 19:34-6, -7, and -15, are content-neutral, non-discriminatory, and constitutional. They 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. The last 100 feet leading to a polling place belong to the voters on Election Day. (P. 41).

The judgment of the Appellate Division is AFFIRMED, as MODIFIED.

JUSTICES LONG, LaVECCHIA, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE ALBIN's opinion. CHIEF JUSTICE RABNER did not participate.

The opinion of the court was delivered by: Justice Albin

September Term 2008

ISSUED JULY 18, 2007

Argued February 17, 2009

The American Civil Liberties Union of New Jersey (ACLU) challenges both an Attorney General directive, which requires those conducting exit polling to register with election officials two weeks before an election, and the Attorney General's denial of the ACLU's request to distribute so-called "voting-rights cards" within 100 feet of a polling place. In our view, the true issue is whether all expressive activities --electioneering and non-electioneering -- are banned within 100 feet of a polling place under New Jersey's election laws and, if so, whether such a ban, as it applies to exit polling and the distribution of voting-rights cards, conforms to the First Amendment of the United States Constitution.

Our review of the clear language of the applicable election-law statutes, and the history that animated those statutes, leads us to conclude that the Legislature intended that voters would have a 100-foot free, unobstructed passage to the polling place, without interference from any person, whether that person is conducting exit polling or handing out voting-rights cards. The ban applies to all expressive activities within that zone, however seemingly laudable or ignoble. We also hold that those election laws are reasonable time, place, and manner restrictions under the First Amendment intended to secure and enhance another vital constitutional right -- the right to vote.

We disagree with the Attorney General's analysis that the First Amendment requires an exception to be carved out of our election-law statutes for exit polling, and only exit polling, in the 100-foot exclusionary zone. That analysis placed the Attorney General in the role of a self-appointed government censor, choosing one form of expressive activity -- to the exclusion of all others -- within the prohibited zone.

I.

In 1972, the Attorney General for the first time rendered an opinion concerning the legality of exit polling within 100 feet of a polling place on Election Day. The Attorney General determined that such polling activities would violate New Jersey's election laws, N.J.S.A. 19:34-6, -7, and -15. The 1972 Opinion declared that our election laws are intended to provide voters with "complete freedom of movement entering and leaving the polls" and prohibit any person, including a news reporter, from "solicit[ing] any voter within one hundred feet of the entrance to the polling place." Indeed, the Attorney General considered "[t]he mere solicitation of a voter's views through exit polling . . . to constitute an impermissible obstruction prohibited by N.J.S.A. 19:34-6, -7 and -15."

In 1988, the Attorney General reversed course. That year, the "major television networks" inquired whether they could conduct exit polling for the presidential primaries within the 100-foot exclusionary zone. The Attorney General issued a letter advising the Secretary of State that the news media possessed a First Amendment right to conduct exit polling within 100 feet of a polling place "in light of recent judicial decisions." (Citing Daily Herald Co. v. Munro, 838 F.2d 380 (9th Cir. 1988); CBS Inc. v. Smith, 681 F. Supp. 794 (S.D. Fla. 1988)). The Attorney General's 1988 letter did not address the right of non-media persons and entities, including public interest groups, to conduct exit polling within the prohibited zone.

In a letter dated August 31, 2006, the Attorney General advised county election officials that, "beginning with the November 2006 General election," non-partisan public interest groups would be permitted to conduct exit polling and to distribute voting-rights cards within 100 feet of the outside entrance of a polling place. In that same letter, the Attorney General stated that a directive would be issued setting forth detailed guidelines for exit polling and pamphleting by non-partisan public interest groups and welcomed input from those county officials "in developing the directive."

In September 2006, a draft directive was circulated, and the Attorney General received a wide array of comments from public and private individuals and groups. The comments included expressions of concern from election officials about implementing a policy that permitted both exit polling and pamphleting within the 100-foot zone. For example, the New Jersey Association of Election Officials indicated that it had "serious concerns" that permitting "additional people access [within the exclusionary zone would] create a congested and unsafe environment for ingress and egress to polling places, including schools, firehouses, senior buildings and other public places." The Association also expressed alarm that "the smooth and efficient election process will be sacrificed to hordes of special interests cluttering the polling areas." Camden County election officials also voiced concern that permitting non-partisan public interest groups to conduct exit polling and hand out pamphlets within 100 feet of a polling place would "wreak havoc for Boards of Elections." Those officials believed that it would be difficult to determine whether a group was, in fact, non-partisan and acting in the public interest and "impossible" to ensure that exit pollsters did not engage in prohibited activity around the entrances to polling sites.

The July 2007 Attorney General's Directive issued to county election officials permits exit polling by both media and non-partisan entities within 100 feet of a polling place, under specified terms, but prohibits the distribution of any "materials" to voters within the 100-foot zone.*fn1 The Directive provides:

1. At least two weeks before an election, a representative of a media outlet or a non-partisan public interest group [seeking to conduct exit polling] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.