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ABC, Inc., et al. v. Wells, et al.

District court grants a preliminary injunction to plaintiff news organizations, allowing them to conduct exit polling during New Jersey’s November 3, 2009, election, in spite of the New Jersey Attorney General’s directive that all expressive activity is forbidden within 100 feet of polling places

Plaintiffs ABC, Inc., The Associated Press, Cable News Network, Inc., CBS Broadcasting, Inc., Fox News Network, LLC, and NBC Universal, Inc. sought a preliminary injunction, by way of an Order to Show Cause, which would allow them to conduct exit polling within 100 feet of approximately forty voting precincts during New Jersey’s November 3, 2009, election. Granting plaintiffs’ motion for preliminary injunction against the Secretary of State and the Attorney General of the State of New Jersey, the court rejected New Jersey’s ban on all expressive activity within 100 feet of polling places, insofar as that ban applies to exit polling. The court also distinguished a recent New Jersey Supreme Court decision which upheld the ban. See In re: Attorney General’s “Directive of Exit Polling: Media and Non-partisan Public Interest Groups”, 2009 WL 3260603 (N.J. Sept. 30, 2009) (hereinafter, “Exit Polling”) .

The term “exit polling” refers to the collection of data from selected voters as they leave polling places during an election. Plaintiffs have jointly conducted exit polling near polling places throughout the United States for about twenty years. Plaintiffs conduct exit polling by sending a representative, referred to as a “pollster”, to each polling place. At the polling place, the pollster asks voters to complete an anonymous survey concerning how they voted, why they voted, and what opinions they held on political issues. Plaintiffs use information from exit poll surveys to report on and project the outcome of an election. Exit poll information is also useful to academics and researchers who study electoral issues.

Along with their motion for a preliminary injunction, plaintiffs submitted the affidavit of Mr. Joseph Lenski, an “expert in exit polling,” which supported plaintiffs’ argument that New Jersey’s 100-foot distance restriction would “severely impact the media’s ability to report the news.” Mr. Lenski stated that, with a 100-foot restriction, pollsters could not effectively identify leaving voters or collect information from them. He also presented evidence of increased statistical error coinciding with a 100-foot restriction and concluded that there is no reliable alternative to exit polls for gathering election-day information.

In order to warrant the grant of a preliminary injunction, plaintiffs had to establish four elements: (1) plaintiffs are likely to succeed on the merits; (2) denying the injunction will result in irreparable harm to the plaintiffs; (3) granting the injunction will not result in greater harm to the defendants; and (4) the injunction is in the public interest.

The court found that plaintiffs are likely to succeed on the merits because exit-polling is protected speech under the First Amendment, and whether New Jersey’s restriction is deemed “content-specific” or “content-neutral” for purposes of First Amendment analysis, “under either inquiry the statute is not narrowly tailored to significant or compelling government interests.” The court stated that, while electioneering can be prohibited at polling stations because of concerns regarding voter intimidation and fraud, there is no historical evidence that such concerns are addressed in any way by prohibiting exit polling by plaintiffs, in part because exit polling only takes place after a queried individual has voted. In so ruling, the court distinguished the United States Supreme Court’s decision in Burson v. Freeman, 504 U.S. 191 (1992), which upheld a statute prohibiting electioneering within 100 feet of polling stations, noting that “[t]he concern in Burson was for voters entering the polls.”

Having found that plaintiffs are likely to succeed on the merits of their claims, the court proceeded to find in favor of plaintiffs on the remaining three elements required to grant the injunction. Concerning irreparable harm, the court found the plaintiffs’ First Amendment freedoms would be irreparably injured under New Jersey’s restriction because there are “no alternative means to gather this information, which is vital to reporting election news.” With regard to harm to defendants, the court found that there is no evidence that exit polling has ever caused a disturbance and that any likelihood of harm is diminished because polling would only take place at 40 out of 3200 precincts. Addressing the public’s interest, the court found that the public’s interest in the right to debate public issues is served by exit polling, which “protects the integrity of the polling places by providing a transparent and non-disruptive access to the media.” Having found all four elements necessary for such relief, the court granted plaintiffs’ motion for a preliminary injunction.