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The best reform: Turn off the TV and vote
Inside the First Amendment

By Ken Paulson
Executive director, First Amendment Center

Americans just hate it when someone gives away the ending — particularly where elections are concerned.

Many viewers were distressed and disappointed last November when the major television networks made early and erroneous projections in the presidential election. With the release last week of a report by the National Commission on Federal Election Reform, it's now apparent those viewers have allies in high places.

In a nation where we're so often reminded that it's our duty to go to the polls, the notion that news media projections may actually discourage voting rankles many.

In a recent First Amendment Center survey, we found that:

  • 80% of Americans say the networks should not be allowed to project winners of an election while people are still voting.

  • 64% believe people would be less likely to vote in an election if a news organization has projected a winner.

  • More than half of Americans say they would support a law barring news organizations from projecting a winner.

Echoing these concerns, the commission co-chaired by former Presidents Jimmy Carter and Gerald Ford condemned the networks' practice of declaring a projected winner in the presidential election before the polls close in the continental U.S.

"This practice demeans democracy," the commission said in its report. "It discourages citizens from participating in the most basic and enriching aspect of self-government — voting. It robs candidates from the White House to the state house to the courthouse of votes they have a right to expect. It mocks the most salient lesson of the November election — that every vote is important and should be counted."

The commission urged news organizations to voluntarily refrain from projecting presidential election results as long as polls remain open anywhere in the U.S. other than Alaska or Hawaii.

In television, ratings trump self-restraint every time. Even if you believe it's inappropriate for a network to project a winner, how likely are you to spend the evening watching cable networks that simply urge you to stay tuned until 11 p.m.? And if given a choice between a network that offers early insight into an election and another that shows dignified restraint, which are you going to watch?

The press has both the right and the duty to report election results in detail. If a network is confident enough to project a winner, it will do so.

And what if news organizations fail to exercise restraint?

The commission has an answer: "Congress and the states should consider prohibiting any public disclosure by government entities of official election tallies in the race for President and Vice President until 11 p.m. Eastern Standard Time."

In other words, the commission is urging a gag law on local election officials to prevent them from telling how their own communities voted in the presidential race until the polls have closed on the West Coast.

The only members of the commission dissenting on this issue were John Seigenthaler, my colleague at the First Amendment Center, and Griffin Bell, the former attorney general. Seigenthaler stood up for the First Amendment in his dissent.

"The Commission's proposal for a law is wrongheaded and unrealistic," Seigenthaler wrote. "Local election officials certainly have a First Amendment right to engage in political speech — and discussing election results clearly is political speech. I cannot believe that the Congress should or would seek to make a law that gags local officials from giving citizens of the news media in their communities and in their state Presidential or Congressional election returns the moment they are available."

As in the battle over campaign-finance reform, Congress and special commissions are all too eager to protect us from ourselves. They want to limit television expenditures because, they say, too many Americans vote on the basis of slick ads and not on the records and positions of the candidates. They want to limit our public access to election results so that a West Coast voter will bother to cast a ballot.

The commission headed by Carter and Ford made a number of constructive and thoughtful suggestions concerning election reform. Calling for an end run around the First Amendment wasn't one of them.

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Last system update: Tuesday, February 9, 2010 | 19:11:27
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