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Judge rules in favor of exit polling in Minnesota

  • Article by: JAMES WALSH
  • Star Tribune
  • October 16, 2008 - 5:10 AM

Exit pollsters have a right to do their work within 100 feet of Minnesota polling places, a federal judge ruled Wednesday.

U.S. Chief Judge Michael Davis called the state's new exit poll law unconstitutional and issued a preliminary injunction allowing ABC, NBC, CBS, Fox News, CNN and the Associated Press to conduct polls close to voting places Nov. 4.

Minnesota's law bars anyone who is not voting or registering to vote on Election Day from standing within 100 feet of a building where voting takes place. Minnesota is the only state in this election with such a restrictive distance requirement, according to an attorney for the news organizations. They filed suit last month against Minnesota's Secretary of State Mark Ritchie and Attorney General Lori Swanson.

In his ruling, Davis said the law infringes on the news organizations' First Amendment rights. He also dismissed the idea that the law is intended to protect against disorder or disruption at the polls.

"There is no evidence that permitting exit pollsters close to the polling building will disrupt the electoral process," Davis wrote.

He said the networks are likely to win their lawsuit and he ordered Ritchie, the secretary of state, to advise all county auditors to allow exit polling within the 100-foot perimeter.

The state had argued that allowing exit pollsters too close to the polls would interfere with voters' privacy.

Ritchie issued a statement Wednesday saying his office had received the judge's ruling and had already directed local election officials to comply. Ritchie didn't comment further.

Susan Buckley, the attorney for the news organizations, was happy with the ruling.

"It's just a wonderful opinion and a victory for the First Amendment in all respects," Buckley said.

A long history of defeat

The networks' lawsuit here is the 12th to be filed in 10 states over the past 20 years against such restrictions, Buckley said. In every case, courts have ruled that they violate the First Amendment. In May, a federal judge in South Dakota issued a permanent injunction against a state law prohibiting exit polling within 100 feet of a polling place.

In fact, this is the second time that a federal judge set aside a Minnesota law restricting access to polling places by pollsters or reporters. In 1988, U.S. District Judge David Doty issued an injunction against a law that prohibited anyone within 100 feet of a polling place from asking how people voted.

Since that time, the Legislature has rewritten the law to prohibit anyone from standing within 100 feet of a polling place, which was interpreted first to be the room where voting takes place. That was amended this year to mean within 100 feet of the building where voting takes place.

Law targets exit pollsters

Saying that would make lawbreakers of kids on playgrounds, people in coffee shops and folks just walking past, Buckley argued that the law really targeted only exit pollsters and was, therefore, unconstitutional. Even state officials acknowledged that the law wasn't meant to rigidly keep everyone out, saying that it was meant to give election judges the power to remove people who they believe should not be there.

Davis agreed that the law appears to target only certain actions -- namely, exit polling. State law already allows journalists inside polling places to observe, as long as they don't question voters.

By pushing exit pollsters 100 feet away, the news organizations argued, the state damaged their ability to conduct accurate polls. The 2008 election is expected to attract record voter turnout in Minnesota and across the country.

Exit polling is an important tool in the electoral process, Davis said in his ruling.

"The public has a fundamental interest in unfettered debate of public issues and governmental affairs," he wrote. "As defendants note, the public also has an interest in a fair and orderly election, and there is no reason to believe that this injunction will interfere with that interest."

James Walsh • 612-673-7428

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