Russell v. Lundergan-Grimes

• Decision Date: 17 October 2014
• Docket Number: No. 14–6262.,14–6262.
• Citation: 769 F.3d 919
• Parties: John RUSSELL, et al., Plaintiffs–Appellees, v. Allison LUNDERGAN–GRIMES, et al., Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

769 F.3d 919

John RUSSELL, et al., Plaintiffs–Appellees,

v.Allison LUNDERGAN–GRIMES, et al., Defendants–Appellants.

No. 14–6262.

United States Court of Appeals, Sixth Circuit.

Oct. 17, 2014.^*

Negative Treatment Reconsidered

KRS 117.235(3).

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

ORDER

PER CURIAM.

State officials for the Commonwealth of Kentucky move for a stay pending appeal of the district court's order declaring unconstitutional a Kentucky electioneering statute, KRS § 117.235. That statute prohibits campaigning within 300 feet “of any entrance to a building in which a voting machine is located if that entrance is unlocked and is used by voters on election day.” KRS § 117.235(3). The district court held that the statute was facially invalid under the First Amendment and permanently enjoined the statute's enforcement in toto. The injunction issued on October 14, 2014, three weeks before Election Day on November 4, 2014.

Federal Rule of Appellate Procedure 8(a) directs that we review Kentucky's motion in light of four factors:

(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.

Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991).

We find that the relevant factors favor granting a partial stay. First, whether the statute violates the free speech rights of electioneers appears to be a close question. Kentucky's 300–foot buffer zone falls within a jurisprudential gray area—somewhere between Burson v. Freeman, 504 U.S. 191, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992), where the Supreme Court upheld a 100–foot buffer zone as constitutional, and Anderson v. Spear, 356 F.3d 651 (6th Cir.2004), where this court struck down a 500–foot buffer zone as unconstitutional. Further, the defendants raise difficult questions of Eleventh Amendment immunity.

Moreover, absent a stay, Kentucky—and likely its voters—would be significantly burdened because the state would be left without any buffer zone between polling places and poll workers. If compelled to hold the upcoming election with no buffer zone, Kentucky would be the only state in the nation without one. See R. 36–3. And it would be the first time in more than 125 years that Kentucky held an election with no buffer zone in place. See Burson, 504 U.S. at 203, 112 S.Ct. 1846; Anderson, 356 F.3d at 657. Forcing Kentucky at such a late date to hold an election under such circumstances is inconsistent with the Supreme Court's recognition that “ some restricted zone around polling places” may be needed to protect “the right to cast a ballot ... free from the taint of intimidation and fraud,” Burson, 504 U.S. at 211, 112 S.Ct. 1846, and with our own repeated admonition that “last-minute injunctions changing election procedures are strongly disfavored.” Serv. Employees Int'l Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir.2012) (per curiam) (collecting prior cases). The district court's order here is especially problematic because inperson absentee voting is already under way. The district court's order changes the rules midstream, elevating the potential for general unfairness and voter confusion. See id. at 346. The public has an interest in the orderly administration of elections to ensure that they are fair, and injecting a significant degree of uncertainty about who is permitted to speak where on Election Day does not coincide with that interest. See id. at 345. See also Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 187, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999) (acknowledging that “there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes”).

Nevertheless, plaintiff John Russell raises both a facial and an as-applied challenge to § 177.235(3), and permitting Kentucky to enforce § 117.235(3) against Russell's electioneering efforts upon his own private property potentially would impose a significant burden upon his First Amendment rights. We have previously described as ...