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100 Foot Bubble Case is a Parable on Testimony to Legislative Bodies

By Eric L. Lipman

About two or three times a year, I am asked to speak to groups of agency officials on the topic of making effective presentations to the State Legislature. For those who still remember the days when I was in the other branch, I cheerfully do this type of training; reviewing my ?Tips for Successful Legislative Relations.? (Secretly, I hope that one day I can parlay these training sessions into my very own How-To show on the local cable access channel: This Old State House?.)

In future presentations, I will no doubt add a summary of the decision issued this week by the U.S. District Court for the District of Minnesota on exit-polling.

On Wednesday, the District Court enjoined the application of a Minnesota statute that imposed a 100-foot exclusion zone from polling places against those who work as exit pollsters. The state statute provided that ?[n]o 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.? Several national television networks had filed suit to bar application of the prohibition to their pollsters, who routinely stand within 100 feet of the building line to a polling place when conducting post-balloting ?exit interviews? with voters.

The case is noteworthy because it presents a number of interesting lessons about statutory reform and legislative history.

The predecessor statute on lingering outside of a polling place on Election Day, established a no-lingering zone that was measured 100 feet from the doorway or entrance to the area where polling was occurring. Confusingly, a wholly different statute bars electioneering or campaigning within 100 feet of the building line of a building in which a polling place is situated. Having two buffer zones, of different sizes, and based upon different types of conduct ? namely, whether one was congregating or electioneering ? made for a set of rules that were difficult to remember and administer. So, in 2008, the Legislature revised the anti-congregating statute so as to establish a single zone, measured from the building line, excluding all of those who might impede access to the polls, for whatever reason.

The television networks objected to the statutory change, as it applied to their pollsters, because a wider exclusion zone would undermine both the accuracy of their Election Day exit polls and the later Election Night projections the networks? analysts make. As the networks argued, as the exclusion zone increases, the more voters are able to ?escape? the solicitation for interviews by pollsters ? a happening that undermines the pollsters? ability to interview voters who are exiting at certain preselected intervals and thus the statistical reliability of the overall survey results.

A key part of the District Court?s analysis of the constitutionality of the statutory change, was testimony that an official of the Secretary of State?s office had earlier rendered to a legislative committee on the proposal. During legislative hearings, the official was asked by a legislator whether the then-proposed exclusion zone of 100 feet measured from the building line, would oblige children in a playground next to a school-based polling place to leave the playground on Election Day. The official replied that the statute would not be interpreted to ?force the children to go to the slide instead of the swing set because of the distance [requirement], but it will give [election judges] the authority they need to move people who need to be moved.? As Chief Judge Davis reasoned, this testimony (from an official in the Executive Branch) established 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;? and thus, granted polling election officials ?more discretion, not less? than the earlier rule.

In my own experience, it is not uncommon for agency officials who testify before legislative committees to get the jitters. Against the backdrop of this latest ruling ? which makes clear that the understanding of statutory terms can follow from such remarks ? the stakes of such testimony just got higher. (But who knows, I might be asked to do more trainings ?.)

The Court?s complete analysis is accessible here.

Full post as published by Within the Scope on October 18, 2008 (boomark / email).