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RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 14a0259p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

JOHN RUSSELL, et al., 

Plaintiffs-Appellees, 

v. 

ALLISON LUNDERGAN-GRIMES, et al., 

Defendants-Appellants. 

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No. 14-6262 

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. 

Decided and Filed: October 17, 2014*

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

_________________ 

ORDER

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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. 

 *

This order was originally filed on October 17, 2014. The court has now designated the order as one 

recommended for full-text publication. 

>
No. 14-6262 Russell, et al. v Lundergan-Grimes, et al. Page 2 

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 electioneerers 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 (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; 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, 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, 
No. 14-6262 Russell, et al. v Lundergan-Grimes, et al. Page 3 

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 (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 “requisite” to the constitutionality of 

a political speech black-out zone that it exempt private property. Anderson, 356 F.3d at 662. 

Indeed, 

[a] special respect for individual liberty in the home has long been part of our 

culture and our law; that principle has special resonance when the government 

seeks to constrain a person’s ability to speak there. Most Americans would be 

understandably dismayed, given that tradition, to learn that it was illegal to 

display from their window an 8- by 11-inch sign expressing their political views. 

City of Ladue v. Gilleo, 512 U.S. 43, 58 (1994) (internal citations omitted) (striking down an 

ordinance prohibiting homeowners from displaying signs on their own property). The fact that 

Russell entered into a consent judgment with several local officials does not guarantee that other 

officials in the state government—including those who seek a stay in the present case—will 

refrain from enforcing § 117.235(3) against him with respect to his activity on his own property. 

 For these reasons, we hereby GRANT the motion to stay in part, and DENY it in part. 

We stay the district court’s October 14, 2014, order granting a permanent injunction to the extent 

that it prohibits Kentucky from enforcing § 117.235(3)’s 300-foot buffer zone against 

campaigning activity in a public forum or on property on which a polling place is located. We 

do not stay the district court’s order to the extent that it prohibits Kentucky from enforcing 

§ 117.235(3) on private property. This prohibition shall remain in effect pending the resolution 

of this appeal. The partial stay will remain in place until the appeal can be heard on the merits 

and a disposition on the merits can be made.