News group asks court to stop NJ exit poll ban

BETH DeFALCO
Associated Press Writer

TRENTON, N.J. (AP) — Six major media outlets who use Election Day polling to gauge the mood and attitudes of the nation asked a federal judge on Friday to stop enforcement of a state court ruling that bans exit polling near voting sites.

The lawsuit was filed in U.S. District Court by the National Election Pool, a consortium that includes The Associated Press, CNN, Fox, ABC, NBC and CBS.

A Sept. 30 state Supreme Court decision bars exit polling and all "expressive activity" within 100 feet of polling places.

New Jersey is the only state to keep exit pollsters and journalists from approaching voters within 100 feet of a polling place. Friday's request for a preliminary injunction comes less than three weeks before the state's Nov. 3 gubernatorial election.

The news consortium argues that exit polling is constitutionally protected. Federal courts have struck down similar attempts in other states.

"We think exit polling is very different from the kinds of activity that anti-electioneering laws like New Jersey's are aimed at, and every court that has given its full attention to that question has agreed with us," said Dave Tomlin, associate general counsel for the AP.

Polling experts say the ban means error rates for exit polls will be much higher.

Both the quality and quantity of the information decreases significantly because interviewers are supposed to approach voters in a preset pattern, such as every fourth voter. As the distance from polling places increases, experts say, so does the likelihood that voters get into their car without being approached or blend into a crowd that includes people who didn't vote.

"The public interest will be better served by the prevention of any such chilling effect, which would deprive citizens, political leaders, journalists, and scholars of some or all of the uniquely accurate and detailed information that is provided by exit polling," lawyers for the National Election Pool said in court papers.

In establishing the buffer zone, the New Jersey court said it is a reasonable restriction of free speech because all activity is banned within the 100-foot perimeter. The court noted that political speech is protected by the First Amendment but can be barred near a polling station to protect the right to vote.

"The last 100 feet leading to a polling place belong to the voters on Election Day," the court wrote.

In the case that led to the state court ruling, the American Civil Liberties Union of New Jersey petitioned the attorney general for permission to hand out wallet-size voter-rights card. The state denied the request, saying such an exemption would allow political groups inside the perimeter.

The ACLU appealed, and the state Supreme Court denied its request. The court took the extra step of barring all form of "expressive activity," including exit polling.

The ACLU has 90 days from Sept. 30 to appeal to the U.S. Supreme Court. Legal director Ed Barocas says the group has not yet made a decision on whether to do so, but he said the ACLU does support the NEP's motion for an injunction.