PENNSYLVANIA RECORD

A western Pennsylvania newspaper is suing the secretary of the commonwealth and

Allegheny County’s Board of Elections over an alleged unconstitutional policy barring reporters and photographers from conducting newsgathering in polling places.

Attorneys for the PG Publishing Co., which publishes the Pittsburgh Post-Gazette, filed a complaint last week at the U.S. District Court for the Western District of Pennsylvania against Commonwealth Secretary Carol Aichele, the Allegheny County Board of Elections and Mark Wolosik, who serves as division manager of the Allegheny County Elections Division.

The complaint, filed by attorneys Frederick N. Frank and Ellis W. Kunka, of the firm Frank, Gale, Bails, Murcko & Pocrass, P.C., claims that county policy barring journalists from polling places violates the Pennsylvania Election Code.

The lawsuit states that attorneys for the newspaper first filed suit at the Allegheny County Court of Common Pleas back on Oct. 31, 2008, seeking to have a judge enjoin the defendants from restricting or interfering with attempts of the newspaper’s reporters and photographers to conduct newsgathering in and around polling places.

While raising First Amendment issues, that initial lawsuit did not challenge the constitutionality of any state statutes, the new complaint states.

This civil action does just that.

The lawsuit states that in addition to denying polling place access to reporters and photographers, the defendants informed the newspaper that any type of recording inside polling places was prohibited under Allegheny County policy.

In a November 2008 court order, an Allegheny judge granted the newspaper’s request for injunctive relief in part, stating that the defendants were prohibited from interfering with attempts to photograph activities in or around the polling places so long as reporters and photographers are located in areas accessible to the public.

However, the court order also stated that no photography would be permitted inside the polling place or within 10 feet from an entrance to a polling place.

The new complaint states that the language of that original court order mirrors language in the Pennsylvania Election Code, the constitutionality of which was not raised or adjudicated in the Allegheny County action.

The new suit states that since the previous court order, some members of the media have been granted access to Pennsylvania polling places to conduct their business, but not all, in what appears to be a case of selective enforcement.

However, the newspaper is concerned its reporters and photographers might once again run into problems during this upcoming election season, since it will constitute the first election since the Pennsylvania legislature passed a controversial Voter ID law that mandates those voting in the election show picture identification.

In its federal complaint, the Post-Gazette is asking a federal judge to issue declaratory judgment that the commonwealth’s election code statute violates the First Amendment rights of the plaintiffs.

“Moreover, this statute as applied and enforced is vague and overly broad, all in violation of the First and Fourteenth Amendments to the United States Constitution,” the lawsuit states.

The lawsuit also claims that following the 2008 Allegheny Court order some members of the media were treated differently than others.

The suit also seeks declaratory judgment on that claim.

“Because the Defendants have previously denied, and are continuing to deny, The Post-Gazette access to polling places in Allegheny County under color of [law] … while allowing other members of the media access to polling places in the Commonwealth of Pennsylvania, The Post-Gazette (as well as all of the readers of The Post-Gazette) will be permanently deprived of their constitutional rights to report upon (and read about) election day events and occurrences that will occur at polling places throughout Pennsylvania,” the lawsuit states. “This deprivation will cause permanent and irreparable injury to The Post-Gazette, its employees and its readers.”

The suit seeks a preliminary and permanent injunction preventing the defendants from barring the newspaper and its employees from polling places on Election Day.

 

The federal case number is 2:12-cv-00960-NBF.