Since today is Election Day, it is an especially appropriate time to revisit the Supreme Court’s decision in In re Attorney General’s “Directive on Exit Polling: Media and Non-Partisan Public Interest Groups,“ 200 N.J. 283 (2009). There, the Court addressed a 2007 directive of the Attorney General that permitted exit polling by media and non-partisan entities within 100 feet of a polling place.
The American Civil Liberties Union asked the Attorney General whether “exit polling” included asking about “voters’ experiences at the polls” or distributing voting-rights cards to exiting voters, and whether persons or entities who do not do exit polling or electioneering could engage in expressive activity, such as handing out leaflets about a peace vigil or promoting an upcoming PTA bake sale, within 100 feet of a polling place. The Attorney General responded that asking about voters’ experiences was permitted, but distributing voting-rights cards or other expressive activity was not. The ACLU appealed to the Appellate Division. That court largely upheld the Attorney General’s position. The ACLU then appealed to the Supreme Court.
In an opinion by Justice Albin, the Court voted 6-0 to modify the Appellate Division’s decision. The Court found that “[o]ur election law statutes, N.J.S.A. 19:34-6, -7, and -15, when read together and when their words are given their plain meaning, manifest a comprehensive scheme to bar all expressive activity within 100 feet of a polling place on Election Day” (emphasis in original). Indeed, the Attorney General’s Office had issued an opinion “that reached the same unremarkable conclusion” in 1972. And “[e]ven if the words of the election-law statutes were shrouded in ambiguity, the historical record buttresses the view that the Legislature intended a total ban on activity near a polling place on Election Day,” as Justice Albin went on to document, beginning with evidence from the 19th century and moving forward.
The election laws, as so construed, did not conflict with the First Amendment. The statutes were non-discriminatory and content-neutral, and there were other places available for communication of information to the public besides the 100 feet nearest to polling places. Moreover, exit polling was not entitled to preferential treatment. “Exit polling presents as serious a concern as any other form of expressive activity within the prohibited zone.” As a result, the Court concluded that the election statutes “must be enforced as they were written, barring all expressive activity near a polling place…. The last 100 feet leading to a polling place belong to the voters on Election Day.”