Federal Appeals Court: Media Has No Right of Access to Polling Places

[Image courtesy of loc.gov]

On Tuesday, the U.S. Court of Appeals for the Third Circuit, based in Philadelphia, released its opinion in PG Publishing Company, Inc. v. Aichele.

The case arose last year when the Pittsburgh Post-Gazette sought to place reporters in polling places to observe the operation of Pennsylvania’s new voter ID law. Election officials denied access, citing state law which prohibits anyone “election officers, clerks, machine inspectors, overseers, watchers, persons in the course of voting, persons lawfully giving assistance to voters, and peace and police officers, when permitted by the provisions of this act” from coming closer than 10 feet to a polling place.

Lawyers for the paper countered that the press has a special right of access for newsgathering purposes and sought to block enforcement of the state law. Initially, the paper and the Alleghany County (Pittsburgh) agreed on a consent decree which would give reporters a limited right of access, but the state objected, arguing that the decree would allow members of the media to violate the law. The trial court agreed and refused to approve the decree. The paper appealed that decision, and in early November the appeals court agreed with the trial court. Tuesday’s opinion provides the basis for the court’s decision.

The heart of the opinion involves three basic conclusions by the court::

1. members of the media should not be allowed any greater access to information than members of the general public;
2. access to information for newsgathering purposes is different from access to a place for the purpose of engaging in speech; therefore,
3. an “experience and logic” test from similar cases involving other government activities applies in this case.

Applying this test, the court found that experience shows that while voting was once an open affair, the advent of secret ballots and other protections “demonstrate[] a decided and long-standing trend away from openness, toward a closed electoral process.” Moreover, while conceding that the desire to monitor and report on the implementation of a new law like voter ID is important, the prospect of large numbers of individuals present in the polling place (because of difficulty in limiting the right of open access) “when individuals are necessarily exchanging personal information in preparation for casting a private vote, could concern, intimidate or even turn away potential voters.”

The court also refused to find an equal protection violation, despite inconsistent application of the law across the state, because of the lack of any evidence that the paper’s reporters were the target of discrimination in enforcement of the law.

PG Publishing has vowed to seek review of the case in the U.S. Supreme Court, claiming that it “is not consistent with the precedent on the right of the media of access to government events.”

This case is worth watching, both because of its potential impact on members of the media but also because how limitations on such polling place restrictions could affect arguments about other outside observers, such as the ones that erupted in Texas and Iowa in 2012.

I’ll keep an eye on this case as it makes its way to the Supreme Court.