The Associated Press has joined with Fox News, CNN, ABC, NBC and CBS in a lawsuit against South Dakota over a law forbidding exit polling with in 100 feet of a voting place. South Dakota Secretary of State Chris Nelson says exit polling can impinge on the voting process. The networks say the law violates their first amendment rights. We talk with both sides.
BOB GARFIELD: In this very long election season, with all its primary night facts and figures, exit polling has become a key part of covering the race for all of the networks. That's why ABC, CBS, NBC, Fox News, CNN and the Associated Press are suing South Dakota over a law that forbids them from doing any exit polling within 100 feet of a place where people vote.
The networks say the law violates their First Amendment rights and assures the inaccuracy of their polls. South Dakota Secretary of State Chris Nelson argues that exit polling can intimidate voters, or even change their vote, especially if they hear exit polling as they're entering a voting place.
We're going to hear from both sides of this debate, starting with Secretary Nelson, who says that on primary day, June 3rd, those who violate the law will be duly punished. CHRIS NELSON: The statute that requires the 100-foot barrier is a criminal statute. If it's violated, the way it would be handled is a precinct official would tell the exit poller - hey, our state law requires you to be 100 foot away from the polling place, please move out to that area.
And if the exit poller, you know, refused to do that or continued to encroach upon that, that's where law enforcement would be called to deal with that, very similar to how we would deal with any incidences of campaigning too close to the polling place, any of those kinds of things that we have on the books to maintain the decorum and the integrity of the polling place. BOB GARFIELD: How would being polled as you're leaving the voting booth interfere with the integrity of the voting process? CHRIS NELSON: If the presence of that person in any way intimidates people from coming into the polling place or if they're literally talking about candidates, pro and con on the various candidates, that kind of thing going on, you know, close to the entry of the polling place or even within the polling place, that could have an effect that we would not want. BOB GARFIELD: Have you gotten any reaction from the people of South Dakota about this law and the enforcement of it? CHRIS NELSON: Yes. Literally, 100 percent of the response that we have heard, either me personally or reading various local blog sites, has confirmed that the people would like to see that 100-foot area upheld.
And typically the comments run along the lines of either, you know, we as citizens don't want to talk to exit pollers so, you know, keep ‘em away from us, or, we just don't like exit polls, period. BOB GARFIELD: One final thing: In the past, the South Dakota primary has come along at a point when decisions had long since been made. There wasn't exactly a media stampede. Does the fact that there will be a greater onslaught than usual in any way affect your decision to step up enforcement of this law? CHRIS NELSON: No, not at all. And, you know, I'm a little puzzled by the comment that we're stepping up enforcement. This is really no different than we've done in every other election.
You know, we have a set of guidelines for conduct at the polling places that is passed out to our election workers. The election workers are trained on how to properly enforce these guidelines. That is no different this year than it has been in the past. BOB GARFIELD: All right. Mr. Secretary, thank you very much. CHRIS NELSON: Thank you. BOB GARFIELD: Chris Nelson is the Secretary of State of South Dakota. Dave Tomlin is the Associate General Counsel for the Associated Press. Dave, welcome to On the Media. DAVE TOMLIN: A pleasure to be here. BOB GARFIELD: This law has been on the books in South Dakota since 1985. Why sue now? DAVE TOMLIN: Well, there's a couple of reasons. I guess the biggest one is that although the law has been on the books, our exit pollsters have been able to operate within that distance, and we assumed that the same would be the case this year. But we were advised by the Secretary of State's office that they intended this year to strictly enforce the provisions of that law. BOB GARFIELD: Now, we just spoke to the South Dakota Secretary of State and he was quite adamant on the point that the law has been enforced, at least, that personnel at the polls have been trained to enforce it. DAVE TOMLIN: Well, that's not the information that we have. Obviously, I'm not going to second guess what his people have told him, but this in previous elections it hasn't been an issue for us.
This litigation is expensive. It's a six-figure exercise to attempt to challenge one of these laws. If South Dakota and its primary were not playing the role at the end of the train in this particular election, we probably wouldn't be litigating this, this year. But we need to do it. BOB GARFIELD: A hundred feet is a third of a football field, but it's also a significant figure in the exit polling business. Why is that? DAVE TOMLIN: When you're taking an exit poll, there's a very strict routine that the pollsters follow for picking the voters. As the distance from the place where voters come out increases, it disrupts the process of selecting the voters, and that in turn results in gaps in accuracy. And that problem has been documented time and time again by the exit polling firm. BOB GARFIELD: Now, you mentioned that it's not inexpensive to litigate these things, but you have done so in the past. How has is it turned out? DAVE TOMLIN: We were victorious in all three of the earlier efforts this year, in Ohio, in Florida and in Nevada. Courts understand exactly why exit polling is core political speech of exactly the sort that the First Amendment is supposed to protect, and that states cannot unreasonably control it. BOB GARFIELD: All right, Dave. Thank you very much. DAVE TOMLIN: Glad to do it. BOB GARFIELD: Dave Tomlin is the Associate General Counsel for the Associated Press.