Vote No Coalition files suit against Warner for free speech violations

By Kyla Asbury | Nov 12, 2018

CHARLESTON — A lawsuit was filed against West Virginia Secretary of State Mac Warner last week alleging violations of free speech.

Vote No on Amendment One Inc., Katherine Lewis and Stacy North filed the lawsuit against Warner on Nov. 5, claiming that Warner enforced an unconstitutional statute that prohibited them from being anywhere on the property of a polling place during early voting.

“His actions thereby deprived Plaintiffs of their rights to free speech and of the opportunity to meaningfully engage with voters mere days before the November 6, 2018, general election,” the plaintiff stated.

In the months leading up to the election, the Vote No Coalition engaged in a comprehensive effort to provide West Virginians with information about how the passage of Amendment 1 would “empower politicians to pass laws that further restrict abortion care with no protections for survivors of rape, incest, or when the health or life of the woman is at risk.”

Pursuant to West Virginia Code, during the early election period, the Vote No Coalition instructed its volunteers to stand more than 100 feet away from the entrances of any polling place.

Lewis and North were scheduled to volunteer from 3 p.m. until 5 p.m. on Nov. 3 at the Mountaineer Mall in Morgantown.

The coalition claims they ensured they were standing more than 100 feet away from the entrance of the polling location, however, shortly after North arrived, a woman leaving the polling location raised her voice and told North that she wasn’t allowed on the property.

When Lewis arrived, a poll worker instructed them that they were not quite 100 feet away and to move a little farther away, which they did.

Shortly thereafter, Warner approached them and told them they could not be anywhere on the property, not even in the parking lot, according to the suit.

The coalition claims Warner stated that there had been a complaint. When North told Warner that it was her understanding that they could be on the property, but more than 100 feet away, Warner advised them that West Virginia law provided they could not be on the property at all.

Warner suggested next to a busy highway that was approximately 700 feet away from the polling location.

“Because the location was next to ongoing traffic, the only opportunity Ms. North and Ms. Lewis had to communicate the Vote No Coalition’s message to voters was by holding signage for drivers and passengers to see as they drove past the location,” the complaint states. “Ms. North and Ms. Lewis did not have the opportunity to have conversations with voters or to provide them literature.”

The coalition claims Warner cited another part of West Virginia code, however, that statute was last amended in 2011 and, in 2015, the Sixth Circuit Court of Appeals issued a decision finding that a 300-foot no political speech buffer zone around polling locations “was not sufficiently tailored to any compelling public interest and thus violated the free speech clause of the First Amendment.”

The coalition is seeking injunctive relief. It is represented by Loree Stark and Anthony J. Majestro of ACLU of West Virginia.

Amendment 1 passed with 51.73 percent of the vote in the Nov. 6 election.

U.S. District Court for the Southern District of West Virginia Case number: 2:18-cv-01406

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