Free Speech Barred at Poll Sites, NJ Court Rules

August 6, 2008

NEWARK - Today the New Jersey appeals court upheld a 2007 directive from the state Attorney General barring constitutionally protected free speech activities and voter education within 100 feet of a polling place. The directive, which the ACLU-NJ fought on the grounds that it limited far more speech than state legislation authorized the Attorney General to ban, hampers voter education efforts at the polls by the ACLU-NJ and other NJ public education organizations.

"This decision threatens two sacred rights for every citizen in the state: the right to vote and the right to free speech," said ACLU-NJ cooperating attorney Frank Corrado of the law firm Barry, Corrado, Grassi and Gibson. "We are immediately petitioning the New Jersey Supreme Court to hear this case."

The directive, issued in a letter from New Jersey Attorney General Anne Milgram last summer, forbids any contact with voters coming and going from polling sites, except contact from people conducting exit poll research, which has its own set of restrictions. Members of the press and public interest groups have to seek advance approval from county elections boards to conduct exit polling and give two weeks' notice of the exact location and names of everyone who may conduct polling. Even when conducting exit polling, however, the groups will still not be permitted to inform voters of their rights at the polls.

In its decision, the court said the legislature meant to essentially ban all free speech activity at polls, not just speech related to electioneering for candidates or issues. The Appellate Division's decision means not only that all distribution of material is prohibited, but all suggestions of any kind made by one person to another are also prohibited.

"The legislature never meant to ban so much speech -- it meant to protect citizens from voter intimidation," said ACLU-NJ Legal Director Ed Barocas. "People at the polls will be violating state law if they distribute any kind of information or if they offer any suggestion to another person, even if the suggestion is who the Yankees should trade for. The directive creates an absurdity that the Appellate Division has turned a blind eye to."

The Appellate Division also held that the broad ban doesn't violate the First Amendment because the court believed people could abuse the right to hand out information at the polls -- but the state had not submitted any evidence of there ever being a disturbance.

The ACLU-NJ, along with other New Jersey groups, has long held voter education drives on Election Day to help people at the polls. Since 2005, even before the Milgram directive, ACLU-NJ volunteers distributing voter rights cards within 100 feet of polling sites were threatened with arrest. The ACLU-NJ submitted evidence that once they were forced to move outside the 100-foot zone, they had little access to voters who may have needed their help.

"I've always found it ironic that the Attorney General is specifically prohibiting work that helps voters exercise the same rights she is duty-bound to protect," Barocas added. "The Attorney General and the Court of Appeals are threatening to arrest people who help voters understand a basic right in a democratic society. Polling places should be free speech zones, not speech-free zones."

Read the ACLU-NJ report about this year's February 5 primary election, which discusses the impact of the electioneering directive.

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