PUBLIC ADVOCATE FILES BRIEF SUPPORTING

VOTING RIGHTS ORGANIZATIONS

TRENTON - Public Advocate Ronald K. Chen today filed a brief with the New Jersey Supreme Court, challenging an Attorney General directive that limits civil rights groups who assist voters at the polls on Election Day.

Read Public Advocate's Amicus Brief  

In an earlier order, the Court approved the Public Advocate’s participation in the case as an amicus curiae, or “friend of the court.”

Current state policy allows nonpartisan civil rights groups to assist voters on Election Day only if they remain more than 100 feet from the entrance to the polling place building.  Groups that wish to verbally survey exiting voters, however, are allowed within that 100 foot zone.

Since 1890, there have been laws on the books in New Jersey prohibiting electioneering, or advocacy for a particular candidate or party, near polling places.  But the laws do not directly address the rights of nonpartisan civil rights or voter education groups. 

As a result, state policy about activity near the polls has varied widely.  A 1972 letter barred all exit polling activity, but as recently as 2006, nonprofit and nonpartisan groups that do not engage in electioneering were allowed to survey voters and offer them impartial voter education materials.  A 2007 “directive” by the Attorney General again barred the civil rights groups, and required exit pollsters to get credentials from county election officials.

Last August, the Appellate Division of Superior Court upheld the directive, but in an order issued October 31, 2008, the New Jersey Supreme Court agreed to hear an appeal of the ruling.

The Public Advocate’s court filings focus on two important issues.

First, Chen argues that the directive is an illegal restriction of free speech rights.  Although the State can legally restrict campaigning and electioneering within the 100-foot zone, the directive instead targets nonpartisan groups that assist all voters in exercising their rights, regardless of party affiliation.  When the directive was being considered, advocates presented evidence that voters are “greatly benefited by vigilant election-protection activities.”  The State did not respond with any proof showing the election process would be harmed by nonpartisan assistance.  Chen maintains that the State’s speculation about unknown “difficulties” that voter assistance programs might cause is not enough to regulate these activities.

Second, the Public Advocate faulted the procedures used by the Attorney General to issue the directive.  Chen argues that rules affecting a broad swath of people, about fundamental constitutional rights like voting, must go through the formal rulemaking process.  The formal process requires proposed rules to be published in a legal notice, public comment, and agency review of comments, followed by a publication of the final rule in the Administrative Code.  Instead of formal administrative rulemaking, the Attorney General instead issued an unpublished directive to county election officials.  Chen argues that the directive is therefore invalid.

Chen has made voter rights a keystone issue during his tenure as Public Advocate.  He has advocated for the rights of voters with disabilities to vote privately and independently at their polling places, and has participated in the process used in selecting electronic voting machines in New Jersey.  He has also successfully negotiated an agreement to help the State Motor Vehicle Commission comply with its voter registration obligations under the National Voter Registration Act.  He has also launched a public education campaign to help ex-offenders restore their right to vote and has worked closely with the education community to bolster compliance with state laws requiring high schools to register eligible students.  Most recently, Chen’s attorneys successfully assisted over 450 voters in county courthouses around the State when their eligibility to vote was questioned in the 2008 presidential election.

The case’s caption is In Re Attorney General’s “Directive on exit polling: Media and non-partisan public interest groups” issued July 18, 2007.  The docket number is 63,087.

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