NEWS MEDIA UPDATE · NEVADA · Newsgathering · Nov. 1, 2006
Judge strikes down exit poll barrier
Nov. 1, 2006 · A federal judge in Las Vegas on Tuesday ordered Nevada election officials not to enforce a rule barring exit polls within 100 feet of a polling place, siding with news organizations that argued the state law violated their First Amendment rights.
U.S. District Judge Philip Pro’s ruling came one week before the Nov. 7 elections, when The Associated Press and five television networks plan to jointly poll voters.
The media organizations also succeeded in getting a Florida judge to strike down a similar law in that state last week, and a federal judge in Ohio ruled in September that a directive that mandated a 100-foot barrier around Ohio polling places was unconstitutional. However, last week the judge refused to order Ohio’s secretary of state to clarify a subsequent order about the exit polls, which the AP and the networks had called confusing.
In Nevada, the media organizations argued that as distance from the polling place increases, exit polls are less accurate because voters may reach their cars or blend into a crowd of nonvoters. Their complaint made note of important insights that have been gleaned from past exit polls, and said the voluntary polls do not interfere with the voting process.
The news organizations conducted polls in Nevada in 2004 without incident. But when they contacted Secretary of State Dean Heller in September about this year’s elections, his office said pollsters would not be allowed within 100 feet of a polling place, citing state law.
In Ohio, the media groups wanted Secretary of State Kenneth Blackwell to clarify a confusing directive his office released after U.S. District Judge Michael H. Watson struck down Blackwell’s 2004 directive banning exit polls within 100 feet of a polling place. As part of the ruling, Watson had ordered Blackwell to issue a directive to county election officials that would prominently include a statement that applying Ohio’s loitering statutes to enforce a 100-foot exit poll barrier was unconstitutional.
On Friday, Watson rejected the media’s request, but noted that Blackwell’s office included the language in smaller type than the rest of the directive’s text.
“Although it is difficult to conceive how the use of smaller type contributed to making the required language ‘prominent’ under any recognized definition of the word, the Court nonetheless finds that defendant substantially complied with its order,” Watson wrote.
(American Broadcasting Companies Inc. v. Heller; American Broadcasting Companies Inc. v. Blackwell, Media Counsel: Susan Buckley, Cahill Gordon & Reindel LLP, New York) — RG