CHARLES TOWN – Special prosecutor Daniel James dropped a charge that publisher Thomas Harding of the Observer in Shepherdstown broke election law by photographing a poll worker at a polling place.
On Oct. 13, Circuit Judge David Sanders granted James’s motion for “nolle prosequi,” meaning no prosecution.
Sanders dismissed the case without prejudice, preserving James’s option to reinstate it.
State law forbids news personnel from entering polling places, but Harding challenged the law as a violation of First Amendment freedom.
He already had scored a First Amendment victory when the Supreme Court of Appeals ruled that he could see signatures on a referendum petition.
Both cases arose from the same referendum campaign, a year ago, over the county zoning ordinance.
When Harding asked to see petitions, county officials turned him down.
He appealed to Sanders, who sided with the county.
He appealed to the Supreme Court, but didn’t obtain a decision prior to the election.
On election day, petition organizer Ronda Lehman acted as chief poll worker at a polling place.
Harding went there, took a photo, and posted it on the Observer website with an article about Lehman supervising a referendum she organized.
Lehman filed a complaint with Secretary of State Natalie Tennant, who appointed James as special prosecutor.
James charged Harding under state law providing that news media personnel may not enter a polling place or a building housing a polling place.
Harding’s attorneys, Andrew Arnold of Arnold and Bailey in Shepherdstown and Ashley Pack of Dinsmore and Shohl in Charleston, filed a brief arguing the law violated the First Amendment.
They pointed out that the law allowed anyone but a journalist to shoot a picture in a polling place.
After James dropped the charge, Arnold said, “I am delighted that the State chose to not contest my argument which results in a dismissal for my client.”