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American Broadcasting Companies, Inc. et al. v. Ritchie: US District Court : 1ST AMENDMENT | VOTE - preliminary injunction regarding exit polling

Civil File No. 08]5285 (MJD/AJB)
MARK RITCHIE, in his official
capacity as the Secretary of State of
the State of Minnesota, and LORI
SWANSON, in her official capacity as
the Attorney General of the State of
John P. Borger, Faegre & Benson LLP, and Susan Buckley, Cahill Gordon &
Reindel LLP, Counsel for Plaintiffs.
Kenneth E. Raschke, Jr. and Nathan J. Hartshorn, Minnesota Attorney Generalfs
Office, Counsel for Defendants.
This matter is before the Court on Plaintiffsf Motion for a Preliminary
Injunction and Request for an Expedited Hearing Date and Briefing Schedule.
[Docket No. 6] The Court heard oral argument on October 9, 2008.
A. Overview of the Parties and the Claim
Plaintiffs are American Broadcasting Companies, Inc., The Associated
Press, Cable News Network, Inc., CBS Broadcasting Inc., Fox News Network,
L.L.C., and NBC Universal, Inc. Plaintiffs all have conducted exit polling in the
past and intend to conduct exit polling in Minnesota on November 4, 2008
through two exit polling organizations: Edison Media Research (gEdisonh) and
Mitofsky International (gMitofskyh).
On September 29, 2008, Plaintiffs filed a Complaint against Minnesota
Secretary of State Mark Ritchie and Minnesota Attorney General Lori Swanson,
in their official capacities. The Complaint contains one count alleging that, as
applied to Plaintiffs, Minnesota Statute 204C.06, subdivision 1 (gthe Statuteh) is
a violation of Plaintiffsf rights under the First Amendment of the United States
In their current motion, Plaintiffs seek a preliminary injunction barring
enforcement of the second sentence of the Statute as applied to their exit polling
activities. The Statute provides:
Lingering near polling place. 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 building in which a polling place is located.
Violation of the Statute is a misdemeanor. Minn. Stat. 645.241.
B. Overview of Exit Polling
Plaintiffs have hired Edison and Mitofsky to conduct polls of voters at 45
selected precincts in Minnesota and elsewhere around the country on November
4, 2008. (Lenski Aff. 1, 22.) Exit polling is accomplished by approaching
voters in a predetermined pattern as they leave the polling place after they have
voted and asking them to fill out a voluntary, short, anonymous questionnaire.
(Id. 5.) The reporters usually stand near the exit of the building and wear
badges clearly identifying themselves as representatives of Plaintiffsf news
organizations. (Id. 7.) They are instructed to not obstruct voters or interfere
with the election process. (Id.)
Plaintiffs argue that the farther away a polling reporter is located from the
polling place, the less reliable the information gathered. (Lenski Aff. 8.) They
claim this is because as distance from the polling place increases, the more likely
it is that the reporter will not be in a position to approach a voter before the voter
gets into his or her car or walks away. (Id.) Also, as distance increases, it is more
difficult to determine who the voters are and to interview a preselected pattern,
such as every fifth voter. (Id.) According to Edisonfs internal evaluation of
nationwide exit polling data in 2004 and 2006, the error rates in precincts where
interviewers were required to stand 100 feet or more from the polling location
were more than twice the error rates in those precincts where the interviewer was
able to stand within 25 feet of the polling place. (Id. 9; see also id. 30]31.)
Plaintiffs use the information from exit polls to analyze and report on
votersf attitudes about issues of public concern, as well as to analyze and report
on who voted for particular candidates and why. They also use it to project
outcomes on election night. (Lenski Aff. 15]17.) After the election is over, the
data is archived and used by scholars and researchers. (Id. 20.)
C. Evolution of Minnesota Exit Polling Law
In 1988, this Court issued an order enjoining enforcement of predecessor
statute Minnesota Statute 204C.06, subdivision 1 (1986), which provided: gNo
one, either inside a polling place or within 100 feet of the entrance to it, shall ask
a voter how the voter intends to vote or has voted on any office of question on
the ballot.h CBS Inc. v. Growe, 15 Media L. Rep. (BNA) 2275 (D. Minn. 1988)
(Doty, J.). The Court held that the restriction was a content based place
restriction because it restricted inquiry within a 100]foot radius, an area
constituting a traditional public forum. Id. at 2277. The Court then concluded
that the restriction was not narrowly tailored because, although Minnesota had a
legitimate interest in maintaining order at the polls, the statute was overinclusive
because it banned nondisruptive exit polling. Id. at 2278. The Court
held that there was a strong likelihood that the plaintiffs would succeed on the
merits of demonstrating that the statute violated the First Amendment. Id. at
After entry of the Growe injunction, in 1989, the Minnesota Legislature
amended the statute to, in effect, prohibit any person from standing within 100
feet of any polling place in Minnesota. However, the Secretary of State advised
the Growe plaintiffs that she would interpret the term gpolling placeh to mean
the room where the polling takes place, rather than the building. (Buckley Aff.
8]9; Ex. A to id.)
In 1993, the legislature amended 204C.06, subd. 1, to clarify that the 100]
foot distance prohibiting standing near the entrance to a polling place was
measured from the room where the polling occurs. (Buckley Aff. 10.)
Plaintiffs claim that during the 2004 and 2006 general elections, their exit
pollsters encountered difficulties in conducting their exit polling in Minnesota.
(Lenski Aff. 27.) They claim that some Minnesota election officials mistakenly
required their pollsters to stand 100 feet from the buildings where polling
occurred, rather than 100 feet from the rooms where the polling occurred. (Id.)
Plaintiffsf representatives contacted the Secretary of Statefs Office early in
September to attempt to resolve the exit polling issues before the November 4,
2008 general election. (Lenski Aff. 24]26.) The Secretary of Statefs Office
advised Plaintiffs that 204C.06, subd. 1, had been amended, effective June 1,
2008, providing that no one could stand gwithin 100 feet of the building in which
a polling place is locatedh and that the statute would be enforced against
Plaintiffsf exit pollsters. (Lenski Aff 26.)
D. Effect of Minnesota Law on Other Polling Place Activities
Minnesota Statute 204C.06, subdivision 8, permits journalists to be inside
polling places to observe voting, but prohibits them from speaking to voters
while inside the polling place. Minnesota law also prevents electioneering within
100 feet of the building in which a polling place is situated. Minn. Stat. 211B.11,
subd. 1. Plaintiffs do not challenge either of these provisions.
A. Standard for Preliminary Injunction
The Eighth Circuit Court of Appeals has established the standard for
considering preliminary injunctions and temporary restraining orders.
Dataphase Sys. Inc. v. CL Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc ).
This Court must consider (1) the threat of irreparable harm to the moving party if
an injunction is not granted, (2) the harm suffered by the moving party if
injunctive relief is denied as compared to the effect on the non]moving party if
the relief is granted, (3) the public interest, and (4) the probability that the
moving party will succeed on the merits. Id. gThe very nature of the inquiry on
petition for preliminary relief militates against a wooden application of the
probability [of success on the merits] test.h Id. at 113. A party, that partyfs
agents, and persons acting in concert with the party are all bound by a temporary
restraining order. United States v. Jenkins, 974 F.2d 32, 36 (2d Cir.1992).
B. Likelihood of Success on the Merits
1. Proper Defendants
Defendants assert that Plaintiffs have brought suit against the wrong
a. Standard for Exception to Eleventh Amendment Immunity
Under the Eleventh Amendment of the United States Constitution, a state
is immune from suit in federal court by citizens of another state or its own
citizens. Skelton v. Henry, 390 F.3d 614, 617 (8th Cir. 2004). However, gthe
Eleventh Amendment does not bar a suit against a state official to enjoin
enforcement of an allegedly unconstitutional statute, provided that esuch officer
[has] some connection with the enforcement of the act.fh Reproductive Health
Servs. of Planned Parenthood of St. Louis Region v. Nixon, 428 F.3d 1139, 1145
(8th Cir. 2005) (quoting Ex Parte Young, 209 U.S. 123, 157 (1908)). gThis
connection must be fairly direct; a generalized duty to enforce state law or
general supervisory power over the persons responsible for enforcing the
challenged provision will not subject an official to suit.h Los Angeles County Bar
Assfn v. Eu, 979 F.2d 697, 704 (9th Cir. 1992) (citations omitted).
b. Discussion
Defendants argue that Plaintiffs have no evidence that either the
Minnesota Secretary of State or the Minnesota Attorney General has taken, has
threatened to take, or is authorized to take any action against them. They claim
that neither Defendant possesses the power or intention to take the alleged
enforcement action. Defendants also argue that none of the persons involved in
direct enforcement of the Statute are appointed, supervised or directed by either
The Court holds that, at this preliminary injunction stage of the
proceedings, Plaintiffs have shown a sufficient connection with the enforcement
of the Statute to demonstrate that Defendants are proper parties for injunctive
relief. The Secretary of State is the proper party because he is gthe chief election
official in the state,h and because he will implement any injunction regarding
election law because gif a provision of state election law cannot be implemented
as a result of a court order, the Secretary of State has the authority and
responsibility to eadopt alternative election procedures.fh Clark v. Pawlenty, 755
N.W.2d 293, 299 (Minn. 2008) (citation omitted). Here, Plaintiffs are challenging
the application of a statute that the Secretary of State, with the assistance of the
Attorney General, has specifically instructed county and local officials to apply.
(2008 Election Judge Guide, Ex. A to Poser Aff., at 13, 51.) Also, as the Clark
court pointed out, the Secretary of State has a statutory obligation to implement
any injunction that the Court orders.
Additionally, both the Secretary of State and the Attorney General have a
statutory duty to instruct election officials on how to conduct the polling. The
Secretary of State is also responsible for preparing and publishing a volume on
state election laws to be furnished to the county auditors and municipal clerks.
Minn. Stat. 204B.27, subd. 2. He may also prepare detailed written instructions
on complying with election laws to the auditors and clerks. Id. The Secretary of
State controls the manner of the mandatory training of county auditors, election
officials, and election judges. Minn. Stat. 204B.25. The Attorney General is
required to provide annotations to the Secretary of State for the election law
volume. Minn. Stat. 204B.27, subd. 2.
In sum, the Secretary of State, guided by the Attorney General, ensures the
uniform statewide application of Minnesotafs election laws.
2. Whether 204C.06 is Unconstitutional as Applied to
Plaintiffsf Exit Polling Activities
a. Standard
The First Amendment provides that gCongress shall make no law . . .
abridging the freedom of speech.h g[H]owever, expressive activity, even in a
quintessential public forum, may interfere with other important activities for
which the property is used. Accordingly, [the Supreme] Court has held that the
government may regulate the time, place, and manner of the expressive activity,
so long as such restrictions are content neutral, are narrowly tailored to serve a
significant governmental interest, and leave open ample alternatives for
communication.h Burson v. Freeman, 504 U.S. 191, 197 (1992) (citations omitted).
b. Restrictions on Exit Polling
There can be no doubt of the paramount importance of free political speech
regarding elections:
Whatever differences may exist about interpretations of the First
Amendment, there is practically universal agreement that a major
purpose of that Amendment was to protect the free discussion of
governmental affairs. This of course includes discussions of
candidates, structures and forms of government, the manner in
which government is operated or should be operated, and all such
matters relating to political processes.
Mills v. Alabama, 384 U.S. 214, 218]19 (1966). Exit polling, which involves a
discussion of governmental affairs and politics as well as the mediafs right to
gather news, is protected by the First Amendment. Daily Herald Co. v. Munro,
838 F.2d 380, 384 (9th Cir. 1988).
As Plaintiffs have noted, no court has upheld a content based law that
specifically required exit pollsters to stand a particular distance from the polling
place. Here, however, the Court is confronted with a content neutral law
restricting the place of expression in the form of exit polling. Plaintiffs have
asserted an as applied challenge only to the Statute.
c. Neutrality of the Statute
The parties disagree on whether the Statute is content based, content
neutral, or activity neutral and only incidentally restricting expression.
On its face, the Statute is content neutral because it prohibits everyone who
is not a voter or election official from gstand[ing] within 100 feet of the building
in which a polling place is located.h The prohibition applies regardless of the
content of the expression in which the person is engaged. The legislative history
of the Statute submitted to the Court demonstrates no intent to target exit polling
in particular. (See Poser Aff. 3; Lindquist Aff.; Exs. to Lindquist Aff.) There is
no mention of exit polling in the legislative discussion of the Statute. Based on
both the language of the Statute and the legislative history of the Statute, the
Court concludes that it is content neutral.
However, the Court does not find that the Statute presents only an
incidental restriction on expression, as urged by Defendants, because the
governmental purpose was not unrelated to suppression of free expression.
Although the plain language of the Statute appears to apply to all persons who
are not voters or election judges who stand within 100 feet of the polling
building, regardless of whether they engage in expressive activity or not, the
legislative history reveals a governmental interest in restricting expression. The
representative of the Secretary of State explained to legislators that the intent of
the Statute was not that children were barred from playing on school grounds
within 100 feet of the polling building. Instead, gwhat this provision would do is
empower election judges to make people move that shouldnft be there.h (Ex. A
to Lindquist Aff. at A]2.) (See also Ex. B to Lindquist Aff. at B]2 (gThis would just
give election judges the authority they need to remove people who donft need to
be there.h); Ex. D to Lindquist Aff. at D]1 (gThis will give election judges the
authority they need to move folks from interest groups like Moveon.org or others
away from the polling place. . . . [T]heyfre gonna use their common sense and not
force the children to go to the slide instead of the swing set because of the
distance, but it will give them the authority they need to move people who need
to be moved.h).) The legislative history demonstrates that the Statute was aimed
at moving persons involved in expressive activity away from the polling
building, and not aimed generally at all persons who happened to be within 100
feet of the polling building. Therefore, the Statute is a content neutral, but not
activity neutral, regulation of the place of expressive activity.
d. Whether the Statute Is Narrowly Tailored
Defendants claim that Minnesota sought to prevent overcrowding and
disruption at polling places. The Court agrees that Defendants have a significant
and compelling government interest in preventing overcrowding and disruption
at polling locations.
Defendants also assert that the Statute is designed to simplify the tasks of
election judges so that they can easily enforce one distance requirement without
becoming engaged in inquiries regarding the particular type of expression in
which a person is involved, such as whether a person is engaged in
electioneering or is impeding access to the polls. Defendants argue that, at busy
polling places, election judges have little time, and the 2008 general election is
likely to be particularly busy and involve historically high rates of voter turnout.
They claim that the Statute conserves election officialsf time because they merely
need to ensure that no non]voter, whether a protester, pollster, or candidate
advocate, is standing within 100 feet of the building in which the polling place is
The Court concludes that the Plaintiffs are likely to demonstrate that the
Statute is not narrowly tailored. There has been no evidence presented to the
Court that exit polling in any way has a detrimental effect on the orderly and
corruption]free polling place. Defendants merely provide evidence of complaints
regarding persons gsoliciting and providing information to voters within 100 feet
of the building.h (Poser Aff. 9.) This evidence is not specific to exit polling.
See also Burson, 504 U.S. at 207 (g[T]here is . . . ample evidence that political
candidates have used campaign workers to commit voter intimidation or
electoral fraud. In contrast, there is simply no evidence that political candidates
have used other forms of solicitation or exit polling to commit such electoral
abuses.h). In fact, g[t]he presence of the press at polling places would likely serve
as a deterrent to fraud and intimidation.h American Broad. Co., Inc. v. Blackwell,
479 F. Supp. 2d 719, 738 (S.D. Ohio 2006). In any case, the Statute bans all exit
polling within 100 feet of the polling building, not merely disruptive exit polling
within 100 feet of the polling building. Nor is there any evidence that election
officials have been burdened dealing with disputes regarding exit pollstersf
positions near the polling building.
Additionally, Defendants already have the authority to prohibit
disturbances at polling places without banning all exit polling activities within
the 100]foot radius. See Minn. Stat. 204C.06, subd. 1 (gAn individual shall be
allowed to go to and from the polling place for the purpose of voting without
unlawful interference.h).
As for Defendantsf assertion that this Statute will save election officialsf
time and effort by not having to engage in disputes regarding who is permitted
to stand at what distance from the polling building, the legislative history
undermines this alleged purpose. The Secretary of Statefs representative
repeatedly explained to legislators that the Statute would not require election
officials to blindly enforce the 100]foot requirement but would, instead, grant
those officials discretion to gremove people who donft need to be thereh by using
their gcommon sense.h In other words, the Statute grants the officials more
discretion, not less. It does not simplify officialsf duties regarding enforcing
requirements of distances from the polls.
e. Whether the Statute Leaves Open Ample Alternatives
for Communication
The Court concludes that the Statute does not leave open ample
alternatives for communication in the form of conducting exit polls. Under the
Statute, Defendants are free to engage in exit polling in all areas more than 100
feet away from the polling buildings. However, the evidence before the Court
demonstrates that locations more than 100 feet from the buildings are not
reasonable alternatives. Defendants have not offered any evidence to refute
Plaintiffsf evidence that exit polls conducted 100 feet away from polling places
produce substantially less reliable results. Forcing exit pollsters to stand 100 feet
from the polling building significantly impedes their ability to identify and
approach voters in a predetermined pattern. Therefore, Defendants have failed
to show that Plaintiffs have gample alternativesh to engage in their protected
expression if the Statute is enforced.
Overall, Plaintiffs are likely to succeed on the merits of their claim that, as
applied to Plaintiffsf exit polling activities, the Statute violates the First
C. Irreparable Harm
Because Plaintiffs have established ga substantial likelihood of success on
the merits of [their] First Amendment claim, [they] . . . also have established
irreparable harm as the result of the deprivation.h Phelps]Roper v. Nixon, 509
F.3d 480, 485 (8th Cir. 2007) (citation omitted). Specifically, Plaintiffs face
irreparable harm if the injunction is not granted because enforcement of the
Statute would restrict their First Amendment rights and result in the loss of
accurate and valuable voter information during this historic election year.
D. Balance of the Harms
Defendants assert that any order changing the operation of Minnesota
election law would cause undue hardship for 30,000 election judges who serve
4,130 precincts. (Poser Aff. 4.) They will be required to learn and apply a new
set of requirements in a short period of time. Defendants assert that this will
cause complications and decrease polling efficiency.
Plaintiffs have presented evidence that enforcement of the distance
requirements in the new law will destroy their ability to conduct effective exit
polls. Additionally, there is no evidence that permitting exit pollsters close to the
polling building will disrupt the electoral process. Finally, through enforcement
of the first sentence of Minnesota Statute 204C.06, subdivision 1, Minnesota has
other authority to protect votersf right to be free from unlawful interference. The
harms faced by Plaintiffs in the absence of an injunction far outweigh the
inconvenience faced by Defendants in having to inform election officials of this
E. Public Interest
The public has a fundamental interest in unfettered debate of public issues
and governmental affairs. 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. The public interest weighs in favor of granting the
F. Conclusion and Bond
Because all four Dataphase factors weigh in favor of granting Plaintiffsf
motion, the Court issues the following Preliminary Injunction. The Court
concludes that no bond is required because the injunction will cause no monetary
harm to Defendants.
Accordingly, based upon the files, records, and proceedings herein, IT IS
Plaintiffsf Motion for a Preliminary Injunction and Request for an
Expedited Hearing Date and Briefing Schedule [Docket No. 6] is
GRANTED as follows:
1. Defendants, their officers, agents, and employees, and any person in
active concert or participation with them who receives actual notice
of this Preliminary Injunction by personal service or otherwise, are
hereby enjoined from enforcing the second sentence of Minn. Stat.
204C.06, subd. 1, as against Plaintiffsf exit polling activities or from
prohibiting Plaintiffs or their agents, under the authority of Minn.
Stat. 204C.06, subd. 1, from conducting exit polls within 100 feet of
Minnesota polling places on November 4, 2008, the day of the
general election, and pending the entry of a final judgment in this
2. The Secretary of State shall forthwith advise all County Auditors
that Plaintiffs and their agents are permitted to engage in exit polling
activities within 100 feet of polling places on November 4, 2008,
provided that their activities do not otherwise violate Minnesota or
federal law or unlawfully interfere with individuals going to and
from the polling place for the purpose of voting. The Secretary of
State shall forthwith notify all County Auditors of the entry and
terms of this Preliminary Injunction.
3. The term gexit pollingh as used in this Preliminary Injunction is
defined as approaching voters in a predetermined pattern as they
leave the polling place after they have voted and asking them to fill
out an anonymous questionnaire.
4. Plaintiffs will not be required to provide security.
5. This Preliminary Injunction shall be effective immediately.
Dated: October 15, 2008 s/ Michael J. Davis
Michael J. Davis
Chief Judge
United States District Court


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