States enact polling laws after ’80 presidential election

From the Winter 2001 issue of The News Media & The Law, page 8.

Many reporters try to cover the area outside of the schools, churches and other buildings where voting actually occurs. But after NBC proclaimed Ronald Reagan the winner of the 1980 presidential election using projections based on exit polls more than two hours before polls closed in the western states, it touched off a 10-year debate on the media’s right to question voters leaving the polls.

State legislators who believed that the projections led to decreased voter turnout and influenced close races in Congress began to propose legislation to prohibit exit polling within 1,000 feet of the polling area and stop television networks from broadcasting results before the polls had closed.

In 1983, Washington state passed the first exit poll legislation when both houses voted to ban polling within 300 feet of voting places. In response, the three major television networks, The New York Times and the Washington Daily Herald filed a lawsuit challenging the law as a violation of First Amendment guarantees. In 1986, a federal district court judge in Seattle found the law unconstitutional. The judge ruled that the media could not obtain the information gleaned from exit polling in any other manner, and that it was not disruptive to voters at the polling place. The judge stated that the true motive for the legislation was to prevent early election predications and not to preserve peace at the polls.

The U.S. Court of Appeals in San Francisco (9th Cir.) affirmed this opinion two years later, stating that “it is not the business of the government to decide what we should and should not know about the political process.” The panel ruled that the law unconstitutionally restricted media access to areas that have traditionally been considered public forum property. (Washington Daily Herald v. Ralph Monroe)

By the time of the 1988 final ruling of the Washington case, 24 states had prohibited exit polling to various degrees. The most extreme measure was Hawaii’s statute forbidding conducting exit polls within 1,000 feet of voting places.

The networks challenged many of these laws and, after the Washington ruling, won seven other lawsuits. Judges often ruled that the restrictions were “content-based” — meaning they outlined what a reporter may and may not ask when interviewing — and applied the strictest scrutiny to these cases. A content-base statute that regulates speech is only constitutional if it is narrowly tailored to accomplish a compelling government interest.

In 1988, federal judges enjoined enforcement of exit polling restrictions in Georgia and Florida, in time for the “Super Tuesday” presidential primaries in March. The same year, federal judges struck down a 500-foot restriction on polling in Kentucky, a 100-yard restriction in Wyoming and a 100-foot restriction in Minnesota. The invalid Minnesota exit poll statute, which forbade asking voters about ballot issues, was deemed a content-based restriction on speech about government affairs that violated the First Amendment. (CBS Inc. v. Growe)

Members of Congress also attempted to prevent the networks from broadcasting election results before all the polls had closed. A bill proposed in 1981 by Sen. S.I. Hayakawa (R-Calif.), would have barred any person from making public any information regarding the number of votes cast until all polls had closed. A similar bill proposed by Sen. James McClure (R-Idaho), would have prohibited broadcasters from announcing any election results or projections until all the polls had closed. These bills were never enacted.

— From “Campaign Reporting” and “Access to Places,” published by The Reporters Committee for Freedom of the Press.