Sunday, Oct. 15, 2006 | 7:26 a.m.
For years, pollsters across the country have hovered outside election-day polling places, peppering voters with questions like, "Who did you vote for?" and "What issues are most important to you?"
These so-called media "exit polls" have proven controversial. Sometimes the results leak, for example. And West Coast officials have complained that in national elections, voter turnout has been affected after citizens hear exit-poll results from the East Coast.
Journalists say exit polls are an important tool for them, and thus for citizens, to learn about voting and issue trends, and to predict what might happen in any given race.
The major broadcasting companies have filed a lawsuit to protect their ability to conduct exit polls in Nevada. The journalists are trying to stop Secretary of State Dean Heller from prohibiting them from conducting these polls within 100 feet of polling places.
The Nevada suit, filed last week in U.S. District Court in Las Vegas, is similar to more than half a dozen suits filed in other states in recent months. So far, the broadcasters have won every time.
The plaintiffs, which include the Associated Press and the five major television news broadcasters - ABC, CBS, NBC, CNN and Fox News - have also requested a court-ordered injunction to prevent the state from limiting exit polling during the upcoming November elections.
The journalists claim that they've conducted these types of exit polls in Nevada in previous elections, and that state officials are misapplying state law.
In the suit, the plaintiffs claim that exit polls "better inform the public about voting behavior, voting trends, and voters' reactions to important issues of the day."
They claim that Nevada's attempt to restrict them from conducting these polls violates their constitutionally protected free-speech rights.
"Voting is one of the fundamental rights we share, and the press' right to comment on voting trends goes to the heart of the First Amendment," said Las Vegas attorney J. Colby Williams, who represents the journalists.
According to Williams, an official with Heller's office tried to persuade an in-house attorney with ABC before the suit was filed that the journalists should agree to forgo any exit polling in the upcoming election on Nov. 7. In return, the official promised, the secretary of state's office would lobby the Legislature next year to clarify the law so that journalists could conduct the exit polls during the 2008 presidential elections.
But the journalists declined and instead filed suit.
Heller's office has not yet formally responded to the suit. Ellick Hsu, the deputy secretary of state for elections, said that there are various interpretations to the statute in question.
But "from our perspective, the state law is pretty straightforward in regard to conducting exit polling within 100 feet of a building where a polling place is located," Hsu said.
The law in question clearly prohibits anyone from "soliciting votes and electioneering" inside a polling place, or within 100 feet from the entrance to the building or structure where the polling place is located.
The law also prohibits anyone from "speak(ing) to a voter on the subject of marking his ballot," which the state interprets as being synonymous with exit-polling.
Heller told the Associated Press that the main issue for him is trying to make sure his state's voters aren't harassed. "The last thing I want is someone walking through a gantlet of people immediately after they have pushed the voting button," he said.
But that's not what typically happens, said Richard Morin of the Pew Research Center for the People and the Press in Washington.
And the importance of exit polls is clear, said Morin, the former longtime director of polling for The Washington Post.
"Exit polls show voting and issue trends that underline what the country's real issues are," he said. "We can't get this information any other way."
By limiting access to many voters, a 100-foot barrier would hinder poll-takers from taking their most complete and accurate surveys, said Morin.
Exit-polling provides a service to media consumers, said Felix Gutierrez, a journalism and communications professor at the Annenberg School for Communication of the University of Southern California.
"Polling is a major part of Election Day activity for folks watching TV or listening to the radio," Gutierrez said. The media conduct these polls "so that they can get the news out to the people who want it. It's not a frivolous activity."
Not everyone may agree, however. Bradley Smith, a law professor at Capital University Law School in Columbus, Ohio, said in a recent Internet posting to fellow election-law attorneys that broadcasters can't assume that exit polls are so highly valued by the public.
"... We'd sure better not assume that the special value of exit polls is self-evident," wrote Smith, a former chairman of the Federal Election Commission. "My guess is that there is strong public support, perhaps even a plurality, to ban all exit polls. Anyone ever see a poll on that?"
Steve Huefner, an election-law expert with Ohio State University's Moritz College of Law, said that when federal courts have dealt with the issue in recent cases, "there's been a tension here between First Amendment and freedom of the press, and the fundamental right to vote."
State laws such as Nevada's primarily were written to prevent electioneering, Huefner said, and for now, judges are siding with journalists who claim that their polling doesn't interfere with the voting process and should be allowed unfettered.
In fact, federal judges in eight states, including Ohio, Florida, Minnesota and Washington, each have considered challenges to state restrictions on exit polling. Each time, the court has held that the practice is protected by the First Amendment.
Two weeks ago in Ohio, a federal judge permanently barred the secretary of state there from prohibiting exit polls from within 100 feet of polling places.
"Exit polling is a form of speech protected under the First Amendment," the judge wrote. In the 2004 elections in that state, the judge concluded, "there is no evidence that plaintiffs' exit polls caused disruption, overcrowding or interfered with the voting process in any way."
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