Copyright Law

Big Media Challenges Constitutionality of Minnesota Polling Restriction

By Sam Bayard

ABC, NBC, CBS, CNN, Fox News, and the Associated Press have joined forces to challenge a Minnesota statute that forbids non-voters to stand within 100 feet of the entrance to a polling place on election day.  In their complaint, the media companies allege that this restriction, as applied to their planned exit polling activities, violates the First Amendment.

The law in question, Minnesota Statutes § 204C.06(1), says:

An individual shall be allowed to go to and from the polling place for the purpose of voting without unlawful interference. No one except an election official or an individual who is waiting to register or to vote shall stand within 100 feet of the entrance to a polling place. The entrance to a polling place is the doorway or point of entry leading into the room or area where voting is occurring.

The Minnesota legislature amended the law in April 2008; the previous version measured the 100 foot zone from the room inside the polling place where voting took place.  Under the previous law, in 2004 and 2006 media representatives apparently engaged in exit polling immediately outside or within approximately 25 feet of the outside door to polling places in Minnesota.

The media organizations argue that the new 100 foot restriction will significantly impair their ability to engage in accurate exit polling because voters are more likely to get into a car and drive away before reaching the 100 foot mark, because it becomes harder to distinguish voters from non-voters as the distance increases, and because it becomes impossible to select polling subjects in a scientifically selected pattern at this distance (thus undermining their sampling methodology).  

Section 204C.06(1) doesn't just impact big media companies and exit polling activity. If you're thinking of bringing a camera or video recorder to the polls in Minnesota to document your own voting experience or you're planning on interviewing fellow voters outside the polls, you too must keep this statute in mind.  Unless the media companies are successful in their legal challenge, you'll want to stay clear of the 100 foot zone except when you're in the process of voting or waiting in line to vote.  So, if interviewing is your thing, definitely don't try to interview departing voters right outside the polling place door.

There's more.  Section 204.06(2) of the Minnesota Statutes may prohibit you from using a cell phone camera or other recording device within the polling place itself, even if your purpose is just to document your own voting experience.  It says: 

Except for these representatives, election judges, sergeants-at-arms, and challengers, an individual may remain inside the polling place during voting hours only while voting or registering to vote, providing proof of residence for an individual who is registering to vote, or assisting a disabled voter or a voter who is unable to read English. During voting hours no one except individuals receiving, marking, or depositing ballots shall approach within six feet of a voting booth, unless lawfully authorized to do so by an election judge.

This section doesn't expressly prohibit the use of a camera or recording device, but it also doesn't include it in the permissible activities for which an individual may remain inside the polling place (voting, registering, providing proof of residence, or assisting a disabled voter), or those activities for which an individual may go near the voting booths (receiving, marking, or depositing ballots). 

Don't get me wrong: the law is not clear. But there is a significant possibility that poll workers or other election officials could read section 204.06(2) as banning the use of any photographic or recording equipment inside the polls.  If you're interested in bringing a camera inside, I suggest you contact the Minnesota Secretary of State Election Center by phone at (651) 215-1440 or (877) 600-VOTE and ask what the state's position is on citizens using cameras and recording devices to document their own voting experiences. And let us know what you find out!

For more coverage of the media companies' lawsuit, see the Reporters Committee, the First Amendment Center, and THR, Esq.

Full post as published by Citizen Media Law Project on October 01, 2008 (boomark / email).