CHARLESTON – The publisher of the Shepherdstown Observer has been granted summary judgment in his case against Secretary of State Natalie Tennant.

Kanawha Circuit Judge Duke Bloom granted Thomas Harding's motion for judgment on the pleadings June 18.

Harding had claimed Tennant misapplied election law and stifled the newspaper's investigation into alleged voting irregularities. Harding had filed the motion for judgment on March 8, 2011, to which Tennant filed in opposition on May 31, 2011.

The Court concluded taht "even when liberally construing both statues, as required, to give two seemingly conflicting statutes meaning, it is clear that W.Va. Code § 3-8-8(i) is in complete opposition to W.Va. Code § 3-1-50," according to the order.

The order also states that it is clear that the blanket gag order on all disclosures by any person, without regard to the purpose or circumstance, of any fact of an election law violation complaint or investigation, proscribed by West Virginia Code § 3-8-8(i) is an "overly broad restriction on speech, despite the State's purported legitimate interests justifying such statute."

The Court concluded that West Virginia Code § 3-8-8(i) is unconstitutional and that the statute is "facially invalid and should be stricken as unconstitutional," according to the order.

The lawsuit was filed after Tennant's office used a pending investigation against Harding to prevent him from publishing information about a controversial zoning referendum in Jefferson County, according to the complaint filed June 2, 2010 in Kanawha Circuit Court.

Harding claims 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.

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

Harding claims 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 Circuit Judge David Saunders in August 2009.

The newspaper appealed Saunders' ruling, and in January 2010, the state Supreme Court agreed to hear the appeal.

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. 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, according to the suit.

Harding was charged in connection with the Election Day incident, but the criminal charges against him were later dismissed.

The Secretary of State's Office has reminded Harding 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 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.

Kanawha Circuit Court case number: 10-C-990

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