ACLU-NJ Challenges Election Day Free Speech Ban

December 26, 2007

NEWARK, N.J. -- The American Civil Liberties Union of New Jersey today Filed a Motion (1.2mb PDF) seeking to stop the State Attorney General from enforcing her prohibition on free speech activities within 100 feet of a polling place, including handing out voter rights cards.

"Free speech and voting rights are core American values," said ACLU-NJ Executive Director Deborah Jacobs. "The Attorney General's decision to restrict such democratic activities on Election Day goes against everything this country stands for and aspires to."

In a July 18, 2007 letter, Attorney General Anne Milgram banned all contact with voters entering polling sites and all contact, except "exit polling," with people leaving polling sites. The Attorney General's Directive (282k PDF) also requires media representatives or representatives of a public interest groups to obtain advance approval from their county Board of Elections to conduct exit polling, and also provide the Board with two weeks notice of the exact locations where exit polling will take place, and the names of each person conducting the polls.

"The Attorney General's Directive (282k PDF) goes far beyond any restriction contemplated by our state legislature, and violates citizens' freedom of speech," said Frank Corrado of Barry, Corrado, Grassi & Gibson in Wildwood, NJ, who represents the ACLU-NJ in the case. "Our state laws restrict 'electioneering' for a candidate or public question, and prohibit actions that would obstruct or interfere with voters entering or exiting polling sites, but handing out voter rights cards does not fall into any of those categories. The Attorney General has clearly exceeded her authority."

In previous elections, the ACLU-NJ, in conjunction with other public interest organizations, organized volunteers to hand out voter rights cards on election days to inform individuals of their rights at the polls. The voter rights cards provide general information and contain no mention of any individual running for office or any public question to be voted upon. Since 2005, ACLU-NJ volunteers who sought to hand out voter rights cards within 100 feet of polling sites were threatened with arrest and were forced to move over 100 feet away, where they had little access to voters. At the times these threats were made, there was no official Attorney General rule that banned the volunteers' activity.

The ACLU-NJ seeks to monitor the polls and hand out voter rights cards to voters during the February 5, 2008, primary election.

The ACLU-NJ initially challenged the Attorney General's decision by filing an appeal in court on October 1, 2007. The lawsuit claims that the Attorney General has exceeded her authority by banning activity that the legislature allows; that her directive conflicts with state laws; and that the ban on handing out voter rights cards and engaging in other non-electioneering speech activities violates the free speech protections of the New Jersey Constitution. Today's action seeks to suspend The Attorney General's Directive (282k PDF) so that free speech activities may take place on primary day.

The case is captioned In re: Attorney General Directive on Exit Polling Issued July 18, 2007.

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