Clark v. Schmidt
| Decision Date | 07 October 2020 |
| Docket Number | Case No. 2:19-cv-02297-HLT |
| Citation | 493 F.Supp.3d 1018 |
| Parties | James W. CLARK, et al., Plaintiffs, v. Derek SCHMIDT, in his official capacity as the Attorney General of Kansas, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Mark P. Johnson, Dentons US, LLP, Kansas City, MO, Zal Kotval Shroff, Lauren Bonds, American Civil Liberties Union of Kansas, Overland Park, KS, for Plaintiffs.
Cynthia C. Dunham, Johnson County Legal Department, Olathe, KS, Donald D. Jarrett, Leawood, KS, for Defendant Johnson County Election Commissioner.
Arthur S. Chalmers, Office of Attorney General, Topeka, KS, for Defendant Derek Schmidt.
This is a 42 U.S.C. § 1983 action challenging the constitutionality of a Kansas election law and a county election policy. All parties move for summary judgment. The principal issues before the Court are (1) whether the 250-foot buffer zone created by Kansas's electioneering statute violates the First Amendment either facially or as applied and (2) whether the discretion that the Johnson County election policy affords poll workers violates the First and Fourteenth Amendments.
On the first issue, the Court finds that the facial challenge to the Kansas electioneering statute fails under the reasoning in Burson v. Freeman and that any as-applied challenges fail for lack of standing. On the second issue, the Court finds that any challenge to the Johnson County election policy fails for lack of standing. The Court grants Defendants’ motions for summary judgment, denies Plaintiffs’ motion for summary judgment, enters judgment in Defendants’ favor on Count 1 and dismisses without prejudice Counts 2, 4, and 5.1
Plaintiffs James Clark, Roseanne Rosen, Kansas for Change Inc., and Daniel DeGroot sue the Kansas Attorney General and the Johnson County Election Commissioner. Derek Schmidt is the Attorney General of Kansas. The Attorney General has direct enforcement authority over election crimes. Connie Schmidt is the Johnson County Election Commissioner. In that role, she is responsible for conducting elections in Johnson County in compliance with all election laws, including K.S.A. § 25-2430 and K.S.A. § 25-2810, and she supervises and has control over polling places in Johnson County.
Electioneering in Kansas is covered by K.S.A. § 25-2430 ("electioneering statute"). Nearly all states have statutes that prohibit electioneering around polling places, though the size of the so-called buffer zone differs. Kansas is one of a few states with an electioneering buffer zone of 250 feet or more. Kansas adopted the Australian ballot system in 1893, and adopted its first electioneering statute shortly after, which established a 100-foot buffer zone. The electioneering statute was amended in 1965 to create a 250-foot buffer zone. No government records can be found that express the reason for the expansion of the electioneering buffer zone from 100 feet to 250 feet. K.S.A. § 25-2430, the current codification of the electioneering statute, in relevant part reads:
Electioneering is knowingly attempting to persuade or influence eligible voters to vote for or against a particular candidate, party or question submitted. Electioneering includes wearing, exhibiting or distributing labels, signs, posters, stickers or other materials that clearly identify a candidate in the election or clearly indicate support or opposition to a question submitted election within any polling place on election day or advance voting site during the time period allowed by law for casting a ballot by advance voting or within a radius of 250 feet from the entrance thereof. Electioneering shall not include bumper stickers affixed to a motor vehicle that is used to transport voters to a polling place or to an advance voting site for the purpose of voting.
Electioneering is a class C misdemeanor. Kansas also has other election-crime statutes. See, e.g. , K.S.A. § 25-2413 (disorderly election conduct); K.S.A. § 25-2415 (intimidation of voters).
Johnson County measures the electioneering buffer zone from the entrance of a polling place with a 250-foot piece of twine. Johnson County prohibits signs regarding a candidate or issue on the ballot within 250 feet of a polling location's entrance, including signs on private property. Johnson County has requested law-enforcement assistance regarding possible electioneering violations. Johnson County also prohibits verbal exit polling. At the polling place at 10551 South Quivira Road in Johnson County, speakers standing outside the buffer zone are unable to interact with voters walking between their vehicles and the entrance. Speakers and voters cannot meaningfully interact or converse at 250 feet. Poll workers are instructed by the Johnson County election office to pull up candidate signs and lay them on the ground so that they are not visible to voters, if the signs are within the buffer zone. Depending on the nature of the conversation and what was being said and how loud, a person talking on a cell phone in a polling place could be electioneering or just generally disruptive of a polling place. The Johnson County Election Commissioner does not supervise or have any authority over polling places outside of Johnson County.
Douglas County measures the 250-foot electioneering buffer zone using an aerial geographic information system ("GIS") map. It measures from each separate entrance to a polling location. At the entrance to the United Way polling place in Douglas County, speakers standing outside the buffer zone are unable to interact with voters walking to the polling place from their vehicles. Douglas County has asked homeowners within the buffer zone to remove campaign signs on their private property; it trains its poll workers to look for signs within the buffer zone at the beginning of each voting day. Douglas County might ask someone wearing a shirt with an obvious political symbol on it to cover it up. Douglas County also considers partisan election-protection work to be electioneering but permits media interviews within the buffer zone. Douglas County also once discussed the removal of brochures from the Douglas County Treasurer's Office, which was in a building with a polling place, because the brochures related to a ballot issue. Douglas County has twenty days of early voting at the Douglas County Clerk's Office, which is in downtown Lawrence near a thoroughfare. The buffer zone for that polling location includes surrounding buildings.
Sedgwick County measures the 250-foot electioneering buffer zone using an aerial GIS map. Election officials in Sedgwick County will ask homeowners within the buffer zone to remove campaign signs, and election officials will remove the signs if the homeowner refuses. Sedgwick County has also asked business owners inside the buffer zone to remove campaign signs from windows during early voting. Sedgwick County prohibits verbal interviews within the buffer zone, including verbal exit interviews. Sedgwick County election workers have asked candidates to stop doing speeches and interviews within the buffer zone and have prohibited political rallies within the buffer zone on early-voting days. Sedgwick County election officials do not consider soliciting signatures for a petition around a polling place to be electioneering under K.S.A. § 25-2430 if the petition does not reference any question on the ballot.
In 2018, a Clay County official asked then-Governor Jeff Colyer to move a campaign event that was within the electioneering buffer zone of a polling place on an advance-voting day. Clark County has also prosecuted a candidate for violation of K.S.A. § 25-2430. At some point in November 2018, Riley County stated an intention to prohibit all election-protection signage at its polling locations. There was communication between the Secretary of State's office, Riley County officials, and the American Civil Liberties Union ("ACLU") about whether the signs were permissible under K.S.A. § 25-2430. It is unclear what action Riley County ultimately took.
At some point, it was disputed whether non-partisan voter-assistance activities were considered electioneering under K.S.A. § 25-2430. On October 22, 2018, the Kansas Attorney General issued Attorney General Opinion No. 2018-15, which clarified that non-partisan voter-assistance activities or signage within 250 feet of a polling entrance does not constitute electioneering under K.S.A. § 25-2430. This is because those activities would not be "attempting to persuade or influence eligible voters to vote for or against a particular candidate, party or question submitted." Likewise, non-partisan voter assistance does not generally meet the definition of disorderly election conduct under K.S.A. § 25-2413 or voter intimidation under K.S.A. § 25-2415. The opinion does not directly address collecting petition signatures on election days or partisan voter-assistance efforts. The opinion is the Attorney General's only authoritative interpretation of the statute and is followed by the Kansas Secretary of State, Johnson County, Douglas County, and Sedgwick County.
Attorney General Opinion No. 2018-15 further states: "However, even though the mere presence of a person offering non-partisan voter assistance, or signage advertising the same, generally would not constitute electioneering, disorderly election conduct, or intimidation of voters, that does not mean a person has the right to engage in those activities at a polling place." It states that, as non-public forums, polling places are amenable to reasonable restrictions on speech.
Johnson County has adopted and abides by Attorney General Opinion No. 2018-15 and does not exclude non-partisan voter-assistance workers. But the parties dispute whether practices reflect...
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