American Broadcasting Co., Inc. v. Blackwell

Decision Date26 September 2006
Docket NumberNo. 1:04CV0750.,1:04CV0750.
Citation479 F.Supp.2d 719
PartiesAMERICAN BROADCASTING COMPANY, INC., et al., Plaintiffs, v. J. Kenneth BLACKWELL, Defendant.
CourtU.S. District Court — Southern District of Ohio

Maureen P. Haney, Richard Michael Goehler, Frost Brown Todd LLC, Cincinnati, OH, Susan Buckley, Cahill Gordon & Reindell LLP, New York, NY, for Plaintiffs.

David R. Langdon, Cincinnati, OH, for Defendant.

OPINION AND ORDER

WATSON, District Judge.

This case concerns the right of news organizations to conduct exit polls within 100 feet of polling places in Ohio on election days. Plaintiffs bring this action under 42 U.S.C. § 1983, asserting, inter alia, defendant's directives limiting access to the area within 100 feet of polling stations violate plaintiffs' rights to free speech and due process guaranteed by the First and Fourteenth Amendments to the U.S. Constitution. Plaintiffs additionally contend Ohio's loitering statutes violate the First Amendment to the extent they could be applied to prohibit plaintiffs from conducting exit polls within 100 feet of polling places. This matter is before the Court on the parties' cross-motions for summary judgment (Does. 44 and 51). For the reasons that follow, the Court grants plaintiffs' summary judgment motion in part and denies it in part. The Court likewise grants defendant's summary judgment motion in part and denies it in part.

I. Facts

With one notable exception, the parties do not dispute the material facts.

A. The Parties

Plaintiffs are: American Broadcasting Companies, Inc.; The Associated Press; Cable News Network LP, LLLP; CBS Broadcasting Inc.; Fox News Network LLC; and NBC Universal, Inc. All plaintiffs engage in the gathering and transmission of news, and all plaintiffs conduct exit polls.

Defendant J. Kenneth Blackwell is the Ohio Secretary of State, a duly elected public official. Ohio Rev.Code § 111.01. Plaintiffs sue defendant in his official capacity only. As Secretary of State, defendant is the chief election officer of the State of Ohio. Ohio Rev.Code § 3501.04. He is responsible for obtaining and maintaining uniformity in the application, operation and interpretation of Ohio election laws and for instructing county boards of election concerning election procedures consistent with Ohio law. See Ohio Rev. Code § 3501.05.

B. Exit Polls

The New York Times credits the late Warren J. Mitofsky with originating the exit polling process in 1967 while he was employed by CBS News. Adam Clymer, Warren J. Mitofsky, 71, Innovator Who Devised Exit Poll, N.Y. Times, Sept. 4, 2006 at A17. Plaintiffs submit Mitofsky's affidavit, inter alia, to explain exit polling.

Mitofsky defined the term "exit poll" as the gathering of data from a random sample of voters at polling places on election day. Mitofsky Aff. ¶ 5. To accomplish this, a reporter stands just outside the exit of the polling place, and in a scientifically pre-determined pattern asks emerging voters to fill out a short questionnaire. Id. Polling reporters wear badges identifying them as representatives of plaintiffs' news organizations. Mitofsky Aff. ¶ 7. Polling reporters are instructed to be courteous and businesslike, and not to interfere with the election process in any way. Id. Exit poll reporters inform voters that their participation in an exit poll is purely voluntary. Id.

Mitofsky explained that exit polls provide accurate data about voter behavior because of the near certainty that the individuals interviewed actually voted. Mitofsky Aff. ¶ 8. Mitofsky represented that as the distance between the reporter and the polling place increases, the information gathered becomes less reliable. Id. The greater the distance, the greater the likelihood the voter will get in his car and drive away, or blend into a crowd of non-voters. Mitofsky Aff. ¶ 9. Also, as the distance increases, it becomes more difficult to differentiate voters from non-voters, and increasing the distance between the polling place and the reporter makes it impossible to interview in a scientifically selected pattern. Id. As an example of the impact, of distance on the accuracy of exit, polls, Mitofsky averred that during the November 2004 election, exit polls conducted 100 feet or more from the polling place had more than twice the statistical error rate as polls conducted within twenty-five feet of the polling place. Mitofsky Aff. ¶ 10. Defendant does not dispute Mitofsky's assertions concerning the affect of distance on the accuracy of exit polls.

News organizations utilize information gathered from exit polls to analyze and report upon voters' attitudes on issues of public concern, and to determine who voted for particular candidates and why. See Mitofsky Aff. ¶ 27. Plaintiffs use exit poll data to prepare election night news reports. Data gathered from exit polls is archived at the Roper Center at the University of Connecticut, and the Inter-University Consortium at the University of Michigan. Mitofsky Aff. ¶ 29. Historians and political scientists have access to the data stored at the archives. Id.

Defendant acknowledges exit polls are an important exercise of free speech protected by the First Amendment to the U.S. Constitution.

C. Defendant's Directives

Defendant's directives to local election officials at issue in this case all concern the application of certain Ohio election laws referred to by the parties as the Loitering Statutes. See Ohio Rev.Code §§ 3501.30, 3501.35 and 3599.24. The Loitering Statutes provide in relevant part:

During an election and the counting of the ballots, no person shall loiter or congregate within the area between the polling place and the small flags of the United States placed on the thoroughfares and walkways leading to the polling place; in any manner hinder or delay an elector in reaching or leaving the place fixed for casting his ballot....

No person, not an election official, employee, witness, challenger, or police officer, shall be allowed to enter the polling place during the election, except for the purpose of voting.

Ohio Rev.Code § 3501.35.

Two or more small flags of the United States approximately fifteen inches in length along the top, which shall be placed at a distance of one hundred feet from the polling place on the thoroughfares or walkways leading to the polling place, to mark the distance within which persons other than election officials, witnesses, challengers, police officers, and electors waiting to mark, marking, or casting their ballots shall not loiter, congregate, or engage in any kind of election campaigning.

Ohio. Rev.Code § 3501.30(A)(4).

(A) No person shall do any of the following:

* * * * * *

(5) Loiter in or about a registration or polling place during registration or the casting and counting of ballots so as to hinder, delay, or interfere with the conduct of the registration or election;

* * * * * *

Ohio Rev.Code § 3599.24.

Defendant issued Advisory No. 2004-02 to all county election officials on February 24, 2004 in anticipation of the March 2, 2004 presidential primary. The February Advisory provided in pertinent part:

Exit polling will be conducted by news organizations for the March 2 Primary Election. The boards are reminded that R.C. 3501.30, 3501.35 and 3599.24 collectively prohibit anyone, on election day, from:

• Engaging in election campaigning within 100 feet of the entrance to a polling place.

• Entering a polling place for any reason other than to vote, unless the person is an election official, a challenger or witness appointed pursuant to R.C. 3505.21, or a police officer.

• Loitering, congregating, hindering or delaying a person from reaching or leaving the polling place.

These statutes do not regulate or specifically address exit polling. Boards are advised that, in keeping with Ohio's past practices, exit pollsters should not be disturbed solely because they are conducting exit polling within the 100-foot boundary. However, if election officials and/or law enforcement officers determine that an exit pollster has unduly hindered or delayed a voter from entering or exiting the polling place, or has been disruptive in violation of the law, appropriate action should be taken, Exit polling is not permitted, under any circumstance, inside any building where the voting is conducted.

It is anticipated that exit pollsters from news organization will conduct themselves in a professional and cooperative manner. Please advise your precinct officials of the possibility of, exit pollsters at their precincts.

Plaintiffs conducted exit polls on March 2, 2004 within 100 feet of polling places without any complaint from the Secretary of State. (Mitofsky Aff. ¶ 13). Plaintiffs do not challenge the constitutionality of the February Directive.

In May 2004, plaintiffs requested written confirmation from defendant of their right to conduct exit polls on election day. Defendant's office responded to plaintiffs on June 6, 2004, informing them that defendant would again distribute an advisory to the county election boards before the election. The February Advisory was attached to the response.

For the next several months, plaintiffs attempted to obtain the new advisory from defendant. Plaintiffs were unsuccessful. On October 20, 2004, defendant issued Directive No. 2004-40 concerning "Polling Place Access." It stated as follows:

The. Ohio Revised Code 3501.30, 3501.35 and 3599.24 collectively prohibit anyone, on Election Day from:

• Engaging in election campaigning within 100 feet of the entrance to a polling place.

• Entering a polling place for any reason other than to vote, unless the person is an election official, a challenger or witness appointed pursuant to R.C. 3505.21; or a police officer.

• Loitering, congregating, hindering or delaying a person from reaching or leaving the polling place.

On Thursday, October 28, 2004, plaintiffs learned that defendant had held a telephone conference with...

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