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Russell v. Lundergan-Grimes

United States Court of Appeals, Sixth Circuit

April 28, 2015

JOHN RUSSELL, et al., Plaintiffs-Appellees,
v.
ALISON LUNDERGAN-GRIMES, Secretary of State of the Commonwealth of Kentucky, et al., Defendants-Appellants

 Argued,  March 3, 2015

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Appeal from the United States District Court for the Eastern District of Kentucky at Covington. No. 2:14-cv-00112--William O. Bertelsman, District Judge.

ARGUED:

Jacob C. Walbourn, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellant Conway.

Lynn Sowards Zellen, OFFICE OF THE SECRETARY OF STATE OF THE COMMONWEALTH OF KENTUCKY, Frankfort, Kentucky, for Secretary of State and State Board of Elections Appellants.

Christopher Wiest, CHRIS WIEST, ATTY AT LAW, PLLC, Crestview Hills, Kentucky, for Appellees.

ON BRIEF:

Jacob C. Walbourn, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, Lynn Sowards Zellen, OFFICE OF THE SECRETARY OF STATE OF THE COMMONWEALTH OF KENTUCKY, Frankfort, Kentucky, Jessica R.C. Malloy, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellants.

Christopher Wiest, CHRIS WIEST, ATTY AT LAW, PLLC, Crestview Hills, Kentucky, Brandon N. Voelker, Cold Spring, Kentucky, Jack S. Gatlin, Thomas B. Bruns, FREUND, FREEZE & ARNOLD, Ft. Mitchell, Kentucky, for Appellees.

Before: BATCHELDER, McKEAGUE, and GRIFFIN, Circuit Judges.

OPINION

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ALICE M. BATCHELDER, Circuit Judge.

This case requires the balancing of First Amendment rights with the right to cast a ballot that is both tabulated and undiluted. Those voting rights are achieved by safeguarding the integrity of the ballot box against fraud, intimidation, and other degradations of the electoral process. Plaintiffs John Russell and Campbell County Auto Body, Inc. (collectively " Russell" ) brought suit under 42 U.S.C. § 1983 against Kentucky Secretary of State Alison Lundergan-Grimes, Kentucky Attorney General Jack Conway, and various other state and local officials, alleging that Kentucky Revised Statute § 117.235(3), which creates a 300-foot no-political-speech buffer zone around polling locations on Election Day, violates Russell's free-speech rights. Russell's business property is 150 feet from a polling location, with a four-lane highway and guardrails between. Citing the statute, Sheriff's deputies have removed political signs from his property on previous election days, and the statute's language prohibits Russell from--on his own property--waving signs and offering campaign literature to passersby. Defendants moved to dismiss the case for lack of subject-matter jurisdiction and failure to state a claim. The district court denied those motions to dismiss, held a bench trial, declared § 117.235(3) unconstitutional, and permanently enjoined its enforcement. We granted a partial stay of that injunction because it was issued only days before the 2014 general election, and expedited this appeal. We now hold that we have jurisdiction over this case, that the Eleventh Amendment does not bar suit against any of the remaining defendants, and that the statute facially violates the First Amendment because Kentucky failed to carry its burden of showing why it required a no-political-speech zone vastly larger than the Supreme Court has previously upheld. We therefore AFFIRM the judgment of the district court.

I. FACTS AND PROCEDURAL HISTORY

The Kentucky statute challenged here provides in relevant part, and with various qualifying provisions not relevant here:

No person shall electioneer at the polling place on the day of any election, as established in KRS 118.025, within a distance of three hundred (300) feet of any entrance to a building in which a voting machine is located. . . . Electioneering shall include the displaying of signs, the distribution of campaign literature, cards, or handbills, the soliciting of signatures to any petition, or the solicitation of votes for or against any bona fide candidate or ballot question in a manner which expressly advocates the passage or defeat of the ballot question, but shall not include exit polling or other exceptions established by the State Board of Elections through the promulgation of administrative regulations.

Ky. Rev. Stat. § 117.235(3). The Kentucky State Board of Elections (KSBE) has promulgated only one exception to these strictures, allowing bumper stickers on cars that are parked at a polling location for only a reasonable amount of time necessary for the driver to cast a ballot. 31 Ky. Admin. Regs. 4:170.

John Russell is president and an owner of Campbell County Auto Body, Inc. Auto Body's property is approximately 150 feet from a polling location in Cold Spring,

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Kentucky, separated from the polling location by a four-lane highway and by guardrails along the roadside. Before both the primary and general elections in 2012 and 2014, both personally and as president of the company, Russell permitted several political candidates he supports to place political signs on his business property. These were signs that were affixed to the ground, and variously expressed support for candidates of both major political parties. From Auto Body's premises on election days, Russell also holds and waves signs and offers to passersby campaign literature for candidates he supports. On the days of the 2012 primary and general elections, over Russell's objections, unidentified deputy sheriffs removed the signs because they were in violation of the statute. Deputies did the same over Russell's repeated objections on May 20, 2014, the day of the primary election. Russell testified, and the district court found, that on Election Day 2014, and for future elections, it was and is Russell's intention " to walk across the highway and stand on the grass in front of the Polling Place between 200 and 300 feet from its entrance . . . to waive [sic] or hold [] signs" and hand out literature to any voter who requests it. Russell fears prosecution under the statute for these activities.

Russell brought this action under 42 U.S.C. § 1983, alleging that § 117.235(3) violates Russell's rights under the Free Speech Clause, both facially and as applied. Defendants include state officials and members of KSBE: Kentucky Secretary of State Alison Lundergan-Grimes, who is also Chair of KSBE; Kentucky Attorney General Jack Conway; KSBE Executive Director Maryellen Allen; and KSBE members David Cross, John Hampton, Stephen Huffman, Denise May, George Russell, and Ronald Morgan. The other defendants are county officials of Campbell County: County Clerk Jack Snodgrass, who is also a member of the Campbell County Board of Elections (CCBE); Campbell County Sheriff Jeff Kidwell, also a member ...


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