Secretary of State sued for prohibiting 2 women from electioneering on Mountaineer Mall property

MORGANTOWN – Two Morgantown women and a Charleston-based advocacy group have sued Secretary of State Mac Warner in federal court, alleging he violated their Frist Amendment rights by prohibiting them from electioneering on Mountaineer Mall property during early voting.

The plaintiffs are Vote No on Amendment One Inc., Katherine Lewis and Stacy North. They’re represented by the American Civil Liberties Union.The case was filed in the U.S. District Court for the Southern District of West Virginia.

The two women were volunteering on Behalf of Vote No on Amendment One on Saturday, the last day of early voting, in the parking lot outside the Mountaineer Mall polling place. A poll worker advised them to move because they were slightly within the 100-foot electioneering limit and they complied, based on state code 3-9-9.

The code section says: “No person may do any electioneering in the polling place or within one hundred feet of the outside entrance of any polling place where early voting is conducted during the period in which early voting is offered during the hours while such early voting is actually taking place.”

The women began engaging with voters coming and going from the polling pace.

About 20 minutes later, Warner approached them and advised them to move again, saying state code prohibits electioneering anywhere on polling place property, in this instance the entire mall property. He told them that there had been a complaint lodged.

North said they understood that 3-9-9 allowed them to be there, outside the 100-foot radius.

Warner said state law forbade them form operating anywhere on mall property. He suggested a site about 700 feet away.

They relocated again but couldn’t interact with voters there; they could only hold up signs.

Warner returned to speak to them again. Lewis looked up 3-9-9 on her cell phone and showed it to Warner; Warner then called an attorney in his office, who read a different passage to her.

It was 3-3-2a, which says: “No person may do any electioneering nor may any person display or distribute in any manner, or authorize the display or distribution of, any literature, posters or material of any kind which tends to influence the voting for or against any candidate or any public question on the property of the county courthouse, any annex facilities, or any other designated early voting locations within the county, during the entire period of regular in-person absentee voting.”

The plaintiffs cite at 2015 federal circuit court ruling that determined a 300-foot buffer zone around a polling place did not serve any compelling interest and was unconstitutional. Following that ruling, in 2017, the Legislature amended 3-9-9 from 300 to 100 feet.

They allege: “Section 3-3-2a provides an undefined and virtually limitless geographic restriction on campaigning activities outside of a polling place during early voting [and] could, in many situations, go well beyond the 300-foot buffer zone that the Sixth Circuit found to be unconstitutional.”

They also allege: “The statute is unconstitutionally overbroad in that it prohibits speech over an expanse of geography with virtually no limits to its restriction and is not narrowly tailored to serve a compelling government interest.”

They seek a declaration and a possible injunction declaring 3-3-2a unconstitutional for being overbroad and not serving any compelling state interest, and prohibiting enforcement of the code section.

In announcing the suit, Warner issued this statement: “The secretary of state’s office must enforce the law as it is written by the Legislature, and this provision in the law has been in the books for years. Regardless the plaintiffs’ contentions, my office cannot pick and choose which provisions of law to enforce.”

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