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6th Cir: Ky. 300-Foot Polling Place Buffer Zone Unconstitutional

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By Mark Wilson, Esq. on April 28, 2015 3:53 PM

Kentucky law prohibits electioneering signs within 300 feet of a polling place -- or, at least, it did until October, when a federal judge held the law unconstitutional, finding that the 300-foot restriction was much larger than necessary to combat the evils of voter coercion and intimidation.

Today, the Sixth Circuit Court of Appeals affirmed the district court's ruling, finding the statute facially invalid under the First Amendment for prohibiting way more speech than was necessary.

A Football Field of Voter Intimidation

Even though John Russell's auto body shop was separated from a polling place "by a four-lane highway and by guardrails along the roadside," the shop was only 150 feet away from a church being used as a polling place, meaning he was forbidden from standing on the grass just outside his business and waving campaign signs or passing out campaign literature to passersby.

After dismissing the state's claims of Eleventh Amendment immunity on Ex Parte Young grounds (challenging the constitutionality of a state law is an exception to the Eleventh Amendment), the panel moved on to the merits.

As the district court did, the Sixth Circuit seized on a 1992 Supreme Court opinion finding a 100-foot buffer constitutional. In 2004, the Sixth Circuit held a 500-foot zone was not constitutional. Somewhere in the middle lies the answer, but is it 300 feet -- the length of a football field?

No, it's not. While acknowledging that the government does have a compelling interest in preventing voter intimidation and harassment, "Kentucky presented no persuasive argument as to why ... a 300-foot radius is required to prevent fraud and intimidation."

That's right: Kentucky provided no reason -- not even "a non-evidentiary policy argument" -- why a 300-foot Forbidden Zone would work just as well, or better, than a 100-foot zone at preventing voter harassment. Notably, 300 feet is the midpoint between the two numbers, but "[t]he State must do more than split the difference to carry its burden," the court said.

Disastrously Overbroad

The panel cautioned that it wasn't saying a 300-foot zone would never be constitutional, but if it were to be so, then the state would need to present convincing evidence of the rationale. In this case, the court said, Kentucky "presented no argument -- and evidently the legislature did not engage in fact finding and analysis -- to carry their burden to explain why they require a no-political-speech area immensely larger than what was legitimized by the Supreme Court."

In a final display of just how broad the Kentucky law was, and how poorly it was supported the Sixth Circuit invalidated it facially because the state would never be able to somehow prove that it had a compelling argument in the law's favor if a different plaintiff showed up.

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