Russell v. Lundergan-Grimes, 14–6262.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation784 F.3d 1037
Docket NumberNo. 14–6262.,14–6262.
PartiesJohn RUSSELL, et al., Plaintiffs–Appellees, v. Alison LUNDERGAN–GRIMES, Secretary of State of the Commonwealth of Kentucky, et al., Defendants–Appellants.
Decision Date28 April 2015

784 F.3d 1037

John RUSSELL, et al., Plaintiffs–Appellees
Alison LUNDERGAN–GRIMES, Secretary of State of the Commonwealth of Kentucky, et al., Defendants–Appellants.

No. 14–6262.

United States Court of Appeals, Sixth Circuit.

Argued: March 3, 2015.
Decided and Filed: April 28, 2015.

784 F.3d 1042

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,

784 F.3d 1043

Thomas B. Bruns, Freund, Freeze & Arnold, Ft. Mitchell, Kentucky, for Appellees.

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



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.


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,

784 F.3d 1044

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 of CCBE; CCBE members John Fisher and Catherine Longshore; and Campbell County Deputy Sheriffs John Does 1–4. Each of these government actors was sued in his or her official capacity.

Russell filed his original complaint on June 16, 2014, seeking declaratory and injunctive relief. The state defendants filed two motions to dismiss, one for Conway under Federal Rule of Civil Procedure Rule 12(b)(6) for failure to state a claim, and another for Grimes and the KSBE defendants under both 12(b)(1) and 12(b)(6) for failure to state a claim and lack of subject-matter jurisdiction. The district court denied Defendants' motions to dismiss on September 15, 2014, after which Russell amended his complaint and also moved for a preliminary injunction. On October 3, Russell entered into a consent decree judgment with the county defendants, ensuring that they would not attempt to enforce the statute against him. With the parties' consent, the court consolidated the hearing on the motion for the preliminary injunction with a bench trial on the merits, see Fed.R.Civ.P. 65(a)(2), and heard arguments on October 13, 2014. The following day, the district court held § 117.235(3) invalid and issued a permanent injunction.

Kentucky brought an emergency appeal to this court. Consistent with the Supreme Court's clear instruction, we have held that “last-minute injunctions changing election procedures are strongly disfavored.” Serv. Emps. Int'l Union Local 1 v. Husted, 698 F.3d 341, 345 (6th Cir.2012) (per curiam). Accordingly, on October 17, 2014, we partially stayed the district court's order, thus ensuring that Kentucky would have some buffer-zone law in place

784 F.3d 1045

for the imminent 2014 election, but refused to stay the order with respect to private property, thereby allowing Russell and others to exercise their free-speech rights on their own property on Election Day. Russell v. Lundergan–Grimes, 769 F.3d 919, 922 (6th Cir.2014) (per curiam). Given that 2015 is a statewide election year in Kentucky and that the primary election is scheduled for May 19, 2015, we granted expedited review for this appeal.


We review de novo a motion to dismiss invoking Federal Rule of Civil Procedure 12(b)(6), construing the complaint in the light most favorable to the plaintiffs, accepting their well-pleaded factual allegations as true, and drawing all reasonable inferences in their favor. See Jackson v. Sedgwick Claims Mgmt. Servs., Inc., 731 F.3d 556, 562 (6th Cir.2013) (en banc). This standard generally governs our review of...

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