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W.Va. judge voids elections complaint gag law

Lawrence Messina

A West Virginia law forbidding anyone from disclosing an elections law complaint or investigation is an overly broad restriction of speech, a Kanawha Circuit judge has ruled in an order declaring the blanket gag provision unconstitutional.

As a result, Secretary of State Natalie Tennant will begin confirming if an investigation is underway, spokesman Jake Glance said Wednesday. The Secretary of State is West Virginia's chief elections officer, and fields these complaints.

"However, it will be the policy of this office to decline comment on particulars of a case in order to protect the integrity of the investigation," Glance said in a statement.

Tennant is also consulting with the state attorney general about possibly appealing the Monday ruling because it does not address shielding the identity of people who file complaints, Glance said. That could expose them to potential retaliation, he noted.

Glance also cited how the gag provision has been state law for more than 40 years, and said that the Legislature may want to consider amending its language to preserve some protections.

Bloom's ruling said that the law may reflect several public policy goals: to promote effective investigations, protect those accused in complaints but later cleared, and prevent the use of these cases for political gain.

"However, while such goals may be legitimate, the statute's prohibition on speech goes well beyond what is needed or permissible," Bloom wrote.

The targeted law threatens anyone who discloses an elections complaint, investigation or report with a misdemeanor, punishable by a $1,000 to $5,000 fine and a jail term of between six and 12 months.

Bloom ruled in favor of Thomas Harding, then-publisher of The Observer newspaper. Harding challenged the law after his attempt to cover a 2009 referendum in Jefferson County yielded an elections complaint and repeated warnings about the gag provision by Tennant's office.

Harding's 2010 lawsuit said he was in a polling place when he photographed a poll worker who had also organized and led the petition drive that prompted the referendum. A resulting criminal charge was later dismissed.

Defending against Harding's challenge, a lawyer for Tennant had argued that the blanket gag law applied only to the investigation phase of a complaint. The defense also cited the confidentiality provision that governs ethics complaints against lawyers.

But Bloom noted that the accused in those investigations can request that they become public. He also found that a law invoked by the defense, addressing the process for handling election law complaints, conflicts with the blanket ban because it allows the person filing the complaint to request a public hearing.

Harding said Monday's ruling is but one outcome from legal challenges spurred by the 2009 referendum, which unsuccessfully targeted a zoning ordinance. The Observer won a 2010 state Supreme Court decision that held that signatures on ballot petitions, such as the one in Jefferson County, become a public record once they're filed.

"I think it's really good news, both for the voters and for the journalists in West Virginia," Harding said of Bloom's order. "It adds transparency and accountability to the process."


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The Associated Press