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Ky.'s 300-Foot Polling Place Buffer Zone Struck Down by Fed. Judge

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By Mark Wilson, Esq. on October 17, 2014 3:21 PM

In an attempt to keep voters from being harassed by signs and people with handbills, many places around the country have geographic limits on signage around polling places. A state law in Kentucky says that no one can engage in electioneering within 300 feet of a polling place.

That seemed a little too far for Judge William O. Bertelsman of the U.S. District Court for the Eastern District of Kentucky, who ruled earlier this week the state's law was unconstitutional.

My Precious Signs!

John Russell owns an auto body shop in Cold Spring, Kentucky. He allowed several candidates for public office to put political signs on the front lawn of the shop. But 150 feet away from the shop is a church that's also used as a polling place during elections. Notably, within that 150 feet, there's also a four-lane highway with guardrails. Nevertheless, those signs were well within the 300-foot zone in which state law says there can be no political signs, so sheriff's deputies told him he had to remove the signs.

Though everyone recognized that this is a First Amendment case subject to "exacting scrutiny" because it deals with a time, place, and manner restriction on political speech, the question was largely fact-based (and kind of subjective): How far away is too far for the law to be "narrowly tailored"?

In 1992, the U.S. Supreme Court, in Burson v. Freeman, upheld a 100-foot zone around a polling place. On the other hand, the Sixth Circuit struck down a 500-foot buffer zone in 2004. Much like the Massachusetts case about restricting speech around an abortion clinic, the court here didn't have to say exactly what distance was appropriate; it just had to say what distance wasn't.

That's Just Too Far

"A 300-foot zone is a far greater distance than is necessary to prevent the targeted evils," the court said. The fact that "such a distance can run across busy streets and highways [and] can cover areas, including private yards, not even visible from the polling place" is evidence that 300 feet is way too far. (That's the length of a football field, by the way.)

Judges aren't in the business of saying what's permissible in situations like this; however, 100 feet was held to be reasonable in Burson, so that's likely going to be the benchmark.

The case does make some sense: The purpose of laws restricting electioneering at polling places is to guard against intimidation and harassment of voters, but at 300 feet -- again, the length of a football field -- chances are, you're not going to intimidate anyone, but you are going to encompass a lot of political speech. The Attorney General of Kentucky has said he plans to appeal to the Sixth Circuit.

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