Shepherdstown newspaper sues Secretary of State over election law

By Kyla Asbury | Jun 3, 2010

CHARLESTON -- The publisher of the Shepherdstown Observer is suing Secretary of State Natalie Tennant, claiming she misapplied election law and stifled the newspaper's investigation into alleged voting irregularities.

Tennant's office has used a pending investigation against Thomas Harding to prevent him from publishing information about a controversial zoning referendum in Jefferson County, according to a complaint filed June 2 in Kanawha Circuit Court.

After the Jefferson County Commission enacted a new zoning ordinance in 2008, the residents circulated a petition to collect enough signatures to put a referendum on the new ordinance on the ballot in November 2009, according to the suit.

The Jefferson County clerk certified that the petition had enough valid signatures, and the referendum was defeated.

The Shepherdstown Observer filed a Freedom of Information Act request for the petition, but the county clerk refused to turn over the list of names because of a decision that was upheld by Jefferson County Circuit Judge David Saunders in August 2009.

Harding claims the Shepherdstown Observer appealed Saunders' ruling, and in January the state Supreme Court agreed to hear the appeal. The FOIA case is pending.

On Nov. 7, 2009, Harding claims he noticed Ronda Lehman, who had organized the petition drive, was working as the chief poll worker at his polling place when he went to vote and took a photograph of her performing her duties, according to the suit. Harding posted the photo, which did not contain citizens, voting booths or ballots, on the Shepherdstown Observer's website.

Afterward, the Secretary of State's Office informed Harding that he was under investigation for possible violations of West Virginia election law, which prohibits journalists from entering polling places while they are working as reporters, the suit says.

Harding has been charged in connection with the Election Day incident, and his criminal case is pending. He claims the Secretary of State's Office has reminded him that it is illegal "to divulge to anyone any part of a report or any proceeding involving an investigation," according to the suit.

The suit says Tennant invoked the law last week when she issued a statement explaining why she would not reveal information about her office's possible investigation into allegations of widespread voter fraud in Lincoln County during the 2009 primary elections.

Harding "seeks to inform the public through The Observer and its website about possible violations of election laws, including improper voting, campaign finance irregularities, candidates' mistakes and other affronts to the democratic process," but is prevented from doing so by the operation of the disclosure law, according to the suit.

Tennant's office interpreted the disclosure law in a way that constricts the flow of information about allegations of voting irregularities and harms Harding and the public by restricting constitutionally protected speech and freedom of the press, the suit says.

Harding is seeking declaratory judgment pronouncing the disclosure law unconstitutional and an injunction preventing the Secretary of State's Office from enforcing it. He is being represented by Bob Bastress, David Hammer and Andrew Arnold.

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