By Donald Scarinci | October 31st, 2012 - 12:19pm
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Election coverage on television seems to focus more on horserace polls and opinions than on the positions candidates have on issues.  In NJ, some newspapers were hoping to enjoin a New Jersey Supreme Court ruling that prohibits the media from interviewing and photographing voters within 100 feet of the polls on Election Day.

The New Jersey Press Association argued that the ban thwarts its members’ ability to provide comprehensive election coverage and violates their First Amendment rights under the U.S. Constitution. However, Federal District Judge Joel A. Pisano recently ruled that the ban should remain intact, at least through the current election.

In his ruling, Pisano concluded that New Jersey’s prohibition against all expressive activities in the 100-foot zone, including exit polling, distributing voters’ rights cards, and photographing voters, was content neutral and seeks to protect the integrity of the election process. “Voters are entitled and have a right to a free, unfettered, unrestricted path to and from a polling place,” he said. Pisano also noted that he was fearful of causing a “fire drill” by changing the rules so late in the election season.

While New Jersey laws on exit polling are up for debate, the ban on electioneering is clearly established under New Jersey law. Activities such as obstructing, soliciting, and interfering with a voter, as well as electioneering and loitering, are prohibited within 100 feet of a polling place. Another provision of New Jersey’s election law makes it a criminal offense to distribute or display any circular or printed matter or offer any suggestion or solicit any support for any candidate, party or public question within the polling place or room or within a distance of one hundred feet of a polling place.

While this case may seem like a blow to the First Amendment, it really does nothing to hurt the newspapers that want to interview people at the polling places.  Reporters have the right to interview voters as long as they stand where the campaign workers stand—100 feet away from the sign posted outside of the polling place.  Photojournalists can use a zoom lens. 

The more interesting case than this one would be a case against a municipality whose police department actually stops a newspaper reporter or a photojournalist from fulfilling their assignment when they are standing 100 feet from the polling place just like the campaign workers.  It is unlikely that we will see a case like that in New Jersey for a federal election.

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 Donald Scarinci is a managing partner at Lyndhurst, N.J.-based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government & Law blogs.

 

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