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Court Seems Frustrated With Electioneering Law

CINCINNATI (CN) - The 6th Circuit seemed likely Tuesday to uphold a ruling against Kentucky's ban on electioneering within 300 feet of an active polling site.

Kentucky adopted the law after its previous 500-foot buffer zone was struck down as unconstitutional.

With no exemption in the statute for private property, local sheriff's officers pulled down numerous signs endorsing both Republican and Democratic candidates in 2010 and 2012.

John Russell filed a federal complaint after local law enforcement twice confiscated campaign signs from his business, Campbell County Auto Body, on Election Day.

The shop sits within 300 feet of a polling place, and U.S. District Judge William Bertelsman ultimately found the law unconstitutional and granted Russell a permanent injunction.

Not worried about hiding his cards as the case went before the 6th Circuit on Tuesday, Judge David McKeague asked why the state needs 300 feet - instead of the Supreme Court-approved 100 feet - to prevent voter intimidation.

Assistant Attorney General Jacob Walbourn admitted that "Kentucky has a long history of election troubles," and cited specific issues with vote purchasing.

When Judge Richard Griffin bluntly told Russell's counsel to address the merits of the case, attorney Chris Wiest explained that the lack of a private-property exemption in the statute opens a door to all manner of enforcement.

If Russell had been speaking on his cellphone about his political beliefs, or handing literature to his wife while at the auto body, he would have been in violation of the statute, the attorney noted.

At this point, Judge McKeague began a lengthy narrative during which he explained that he had paced off Fountain Square in downtown Cincinnati and found it to be roughly 300 feet across.

He said that at 300 feet, if someone holds up a sign, it is very difficult to see how a voter would be intimidated.

McKeague then told the court about a giant, electronic sign in Fountain Square. He asked Wiest whether such a sign - with a picture of an aborted fetus, no less - would be considered voter intimidation if Russell placed it on his property.

Wiest responded: "I don't believe so. [It does not involve] an approach to the voters ... [and] does not interfere with the act of voting."

The attorney concluded his argument with an attack on the state's motives for enacting the statute. "The state had [a] 500-foot [buffer zone] struck down, so they gave 300 a shot," Wiest said. "It had nothing to do with voter fraud or intimidation."

McKeague had been impatient with the argument by Lynn Zellen, representing Secretary of State Allison Lundergan-Grimes and the state Elections Board members that Russell sued.

Zellen said the proper defendants for Russell's lawsuit are the county officials and law-enforcement officers who enforced the statute, but McKeague seemed skeptical. "You cannot sue the state when a county enforces a state statute?" the judge asked.

"Do we have to spend time on your issue?" McKeague said as the argument persisted. "Do we care?"

McKeague similarly skewered Assistant Attorney General Walbourn, representing Attorney General Jack Conway, asking for a guarantee that the state would not enforce the statute in the future.

Declining to make that guarantee, Walbourn noted that "enjoining the attorney general does nothing to stop local enforcement of the law."

"Seriously?" an incredulous McKeague asked. "You think local police would enforce a statute that the attorney general cannot?"

Russell's attorney Wiest told the court "no rational person ... can say there is not a credible threat of enforcement [of the statute]."

Wiest challenged the assertion that the state officials lack the authority to enforce the statute, saying these "puppet masters" simply tell local agencies when and how to act.

With his limited rebuttal time, the assistant attorney general defended the merits of the statute, positing that voters could be intimidated by "someone casting a concerned look" as they entered the polling place.

The judges seem unconvinced, with Judge McKeague noting that "at 300 feet, you can't even see his eyes."

No timetable has been set for a decision by the panel, which also included Judge Alice Batchelder.

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