Supreme Court Declines to Hear Case Seeking Polling Place Access for Pennsylvania Media

[Image courtesy of architecture.about.com]

Court-watchers were intently eyeing the U.S. Supreme Court yesterday, awaiting the release of some key decisions including the Shelby County case challenging Section 5 of the Voting Rights Act.

While that decision didn’t come down, there was one bit of resolution tucked away in the Court’s weekly orders list: case 12-1197, PG PUBLISHING CO. V. AICHELE, CAROL, ET AL, on which the Court “declined certiorari,” i.e., decided not to take the case.

I blogged the case back in January:

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.

Yesterday’s “denial of cert” means that the appellate court’s decision stands. The Post-Gazette had this followup:

“We are disappointed. The justices did not take the case and we continue to believe that the issues raised in the case involve significant First Amendment rights for the media,” said attorney Frederick Frank of Pittsburgh, who represents the Post-Gazette.

The newspaper had argued that access was especially important in November as the state conducted a dry run of voter identification requirements. Journalists wanted to monitor what happened when voters for the first time were asked for identification. The voter ID law, which has not yet gone fully into effect, is being challenged in a separate Commonwealth Court suit filed by several voters claiming disenfranchisement.

To its credit, the Post-Gazette does provide a nice summary of the policies at issue in the case, using lawyers familiar with the field:

Legal scholars are divided over whether the newspaper’s appeal was smart. If the court had taken up the case and ruled against the Post-Gazette, the ruling would have limited press freedoms in places such as Ohio, where the Sixth Circuit ruled in a separate case that journalists have a right to report and take photos inside polling places.

“When you appeal, there’s the chance that you might actually do more damage to the cause. The court might have even said, ‘Not only is there no access to the inside of polling places, we’re kind of concerned about the press hovering outside the polling place,’ ” said Justin Leavitt, professor of election law at Loyola Law School in Los Angeles.

But Mr. Leavitt’s colleague, John Nockleby, director of Loyola’s Civil Justice Program, said there was little risk to appeal and the potential of significant gain. That’s because the ruling by the 3rd U.S. Circuit Court of Appeals was well reasoned and courts in other jurisdictions likely would rely on it, even though it carries no actual legal precedent outside its jurisdiction of Pennsylvania, New Jersey and Delaware.

“In terms of persuasiveness, the 3rd Circuit decision probably carries the day and would be persuasive in other jurisdictions, so if you don’t like this decision you really have to challenge it,” he said.

The state could, in essence, overrule the decision by enacting a law permitting access – but there is no indication such such an effort is forthcoming. Until then, transparency advocates are disappointed:

Witold “Vic” Walczak, legal director of the American Civil Liberties Union of Pennsylvania, lamented restrictions on journalists’ access.

“The ACLU is every bit as concerned about voter privacy as anybody else, but there are certainly ways to allow the press in without compromising ballot security and privacy,” he said. “Giving the press some limited access inside the polling place would be a good antiseptic measure given the widespread concerns about potential fraud and other problems in administering elections.”

As always, stay tuned.