In re: Attorney General Directive on Exit Polling

On September 30, 2009, the New Jersey Supreme Court upheld the Attorney General's ban on handing out voter rights cards at polling places and, in fact, went beyond the position sought by the Attorney General and banned all free speech activity (including exit polling by the press) within 100 feet of the polls. The Court read the various state statutes banning electioneering, obstruction, interference, and loitering at polls as evidence of a legislative desire to create a complete contact-free zone within 100 feet of polling places during elections.

The Court then held that the ban did not violate the right to free speech because of the substantial state interest in having people vote free from interference, because the ban is "narrowly tailored" to the polling sites, and because there are alternate channels of communications available to the ACLU-NJ and to the press (namely, that (1) while the ACLU-NJ cannot educate voters on Election Day, it can try to educate voters the other days of the year and (2) while press will not be able to effectively exit poll at the polling sites, they can exit poll by calling people on the phone). The Court rejected the ACLU-NJ's arguments that: (1) the statutes identify specific types of activities (that actually interfere with voting) that are prohibited and that all other free speech activity which is non-obstructive was intended to be allowed; and (2) the ban violates free speech rights under both the state and federal constitutions as the state has not set forth a compelling reason to prohibit any speech other than speech that intimidates, obstructs or actually interferes with voters.

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