Pa. attorney: Candidate did not violate election law

A write-in candidate for the Carbon County Board of Commissioners did not violate election code law with his advertisement in the Times News on Saturday, according to a representative of the Pennsylvania NewsMedia Association.

In a social media post, Republican commissioner candidate Chris Lukasevich accused write-in candidate Tom Gerhard and the Times News of violating a portion of the law dealing with the timing of political advertisements before an election.

Lukasevich cited the original code, which states a candidate can’t place any advertisement referring to an opposing candidate for the same office during the 120 hours immediately before an election unless he has first given a copy of the material and notice to the opposing candidate and the county board of elections of the county where the advertisement is to be placed in sufficient time for a reply.

Only that part of the law had been struck down in court almost 40 years ago.

“The advertising timing provisions of the election code were declared unconstitutional by the Pennsylvania Supreme Court in 1980 in Commonwealth of Pennsylvania vs. Wadzinski,” said Melissa Melewsky, media law counsel with the Pennsylvania NewsMedia Association. “The election code text still contains the unconstitutional timing provisions; the Legislature has not amended it to be consistent with the holding in Wadzinski. Accordingly, the Wadzinski decision, and its invalidation of the timing provisions, aren’t apparent to those who look only at the text of the statute. The text of the statute must be read in conjunction with applicable judicial precedent to get a full understanding of the law.”

Frank J. Wadzinski was an unsuccessful candidate for mayor of the City of Nanticoke in 1973. After the election, Wadzinski was charged in a criminal complaint with making a paid political broadcast referring to his opponent without giving prior notice of the broadcast as required by the code. He was convicted of this offense and fined $25 by a district magistrate. He lost an appeal in front of the state superior court before the supreme court reversed the decision.

“It is readily apparent that the broad sweep of the Section 1614 notice requirement places a substantial burden on the candidate’s ability to engage in protected political discourse,” Supreme Court Justice Bruce Kauffman wrote in the opinion at the time. “Further, the inhibitory effect of that requirement will in many cases work directly counter to the governmental interest in providing voter access to accurate information about candidates and to robust debate on the issues.”

Gerhard’s advertisement accused Lukasevich of being dishonest and telling the Republican Party he wanted nothing to do with them and that they were a liability.

Contacted Monday morning, Lukasevich referred any comment on the interpretation of the election code law to his lawyer, Armin Feldman.

“I read the original statute, which within a year was deemed unconstitutional,” Feldman said. “The Supreme Court thought the statute was too broad and restricted free speech. Dave Masenheimer of Pencor was really up on the law and cited the fact that it was deemed unconstitutional. It sure would be nice if the law would give us an opportunity to respond, but it doesn’t.”

Feldman said though the advertisement was legal, he felt Gerhard’s statements were vague.

“Chris was going up against two incumbents in the Republican primary and he couldn’t have been successful if he didn’t distance himself from the two of them,” Feldman said. “After the primary, he still felt like he had to be careful because the county Republican committee seemed to be pro-Gerhard. It came to a head when the Republicans created a candidate card they were handing out at the Carbon County Fair that did not have Chris’ name on it.”

Feldman said he did inform the committee of the potential for a lawsuit for what, in his opinion was a violation of bylaws. The lawsuit was never filed.

Gerhard didn’t comment on the ad which is running again today.

Lukasevich, of Jim Thorpe, knocked Gerhard off Tuesday’s ballot during the primary, when he received 2,520 votes to Gerhard’s 2,391. Republican Incumbent Wayne E. Nothstein garnered the most votes in the GOP primary with 2,756.

On the Democratic ticket, Rocky Ahner and Robert “Bob” Jacobs came out on top in their party. Ahner was the top vote-getter in his party with 2,459 votes, while Jacobs received 2,337.

Kathy Boockvar, acting secretary of the commonwealth, said based on the Wadzinski decision, it is the position of her office that the section of the election code requiring notification of advertisements is unenforceable.

Many people are unaware of the state of the law and that can lead to confusion and misapplication, as appears to have happened in this case,” Melewsky said. “We hear about this issue occasionally, but not during every primary and election cycle. During my time with PNA (13.5 years), I’ve addressed this issue a handful of times, at most.”