1 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

_________________

J OHN R USSELL , et al., Plaintiffs-Appellees ,

v.

A LLISON L UNDERGAN -G RIMES , et al., Defendants-Appellants

. ┐ │ │ │ │ │ │ │ ┘ No. 14-6262

Appeal from the United St ates 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

_________________ PER CURIAM. State official s for the Commonwealth of Kentucky move for a stay pending appeal of the district court’s order declaring unconstitu tional a Kentucky electioneering statute, KRS § 117.235. That statut e 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). Th e district court held that th e statute was facially invalid under the First Amendment and permanently enjoin ed the statute’s enforcement in toto. The injunction issued on October 14, 2014, three we eks 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 Lunde rgan-Grimes, et al. Page 2

Federal Rule of Appellate Procedure 8(a) di rects that we review Kentucky’s motion in light of four factors:
(1) the likelihood that the party seeking th e stay will prevail on the merits of the appeal; (2) the likelihood th at 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 Radioac tive Material Users, Inc. v. Griepentrog , 945 F.2d 150, 153 (6th Cir. 1991).
We find that the relevant factors favor granti ng 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 jurisp rudential 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. Fu rther, the defendants raise difficult questions of Eleventh Amendment immunity.
Moreover, absent a stay, Kentucky—and lik ely 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 el ection 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 inc onsistent 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 electio n 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 or der here is especially problematic because inperson absentee voting is already under way. Th e district court’s or der changes the rules midstream, elevating the pot ential for general unfairn ess and voter confusion. See id

. at 346. The public has an interest in the orderly administra tion of elections to ensure that they are fair,No. 14-6262 Russell, et al. v Lunde rgan-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) (acknowle dging 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 accompa ny the democratic processes”).
Nevertheless, plaintiff John Russell raises bot h 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 potentiall y would impose a significant burden upon his First Amendment rights. We have previously desc ribed as “requisite” to the constitutionality of a political speech black-out zone th at 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 res onance 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 cita tions omitted) (striking down an ordinance prohibiting homeowners from displaying signs on their own propert y). The fact that
Russell entered into a cons ent judgment with several local offi cials does not guara ntee that other officials in the state governme nt—including those who seek a stay in the present case—will refrain from enforcing § 117.235(3) against him with respect to hi s activity on his own property.
For these reasons, we hereby GRANT the moti on to stay in part, and DENY it in part. We stay the district court’s Oc tober 14, 2014, order granting a perm anent injunction to the extent that it prohibits Kentucky from enforcin g § 117.235(3)’s 300-foot buffer zone against campaigning activity in a public forum or on prope rty on which a polling place is located. We do not stay the district court’s order to the extent that it pr ohibits Kentucky from enforcing § 117.235(3) on private property. Th is 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.