By Edward McKinley and Katie Bernard, The Kansas City Star
The ACLU of Kansas is suing in federal court to challenge the state’s 250-foot “buffer zone” that bars electioneering near polling places during elections, calling it unconstitutional.
Most states have laws limiting advocacy for candidates or ballot questions near polling places, and the Supreme Court has previously upheld state laws that establish a 100-foot buffer zone. The ACLU said Kansas had one of the largest such zones in the country and that it doesn’t provide an exemption for private property.
Scott Schwab, Kansas secretary of state, and Ronnie Metsker, Johnson County’s election commissioner, are named as defendants. The plaintiffs are Kansas For Change, a marijuana advocacy group, along with several individuals banned from polling places who contend they have been deprived of their free speech.
The ACLU said Schwab has allowed local election officials, such as Metsker, to use the law to ban any speech or assembly near polling places that could become a “nuisance.” In turn, the ACLU said, Johnson County’s official policy is to ban all political speech in those areas.
This, the ACLU said, is so broad that it effectively stops people from exercising any kind of political speech near polling places, even speech that isn’t promoting a candidate or question that’s actually on the ballot. Caught up in enforcement of the law are those collecting petition signatures, serving as nonpartisan voter protection volunteers and members of the news media.
The ACLU asked in their suit for the parts of the law that go beyond a 100-foot buffer zone to be thrown out so advocates could gather near polling places for the 2020 election.
“There’s just no justification for having that many restrictions on free speech. It’s just unnecessary to protect individuals who are voting,” Lauren Bonds, legal director and interim executive director for the Kansas ACLU, said of the law.
Bonds said the ACLU is also concerned that Metsker has “weaponized” the electioneering statute to prevent nonpartisan voter protection workers who are there as watchdogs for voter intimidation, improper provisional ballots, unduly long lines and other election administration issues. Those workers are there to make the process smoother for voters, she said.
Metsker said in a Thursday evening text message to The Star that he was out of the state for certification classes through the weekend, and he was unaware of the lawsuit. A spokeswoman for Schwab said Thursday afternoon that their office had been aware the ACLU was considering the lawsuit, but they hadn’t reviewed the complaint yet.
Courts must use the “strict scrutiny” standard when considering the constitutionality of laws that regulate what you’re allowed to say, said Richard Levy, a constitutional law expert and professor at the KU School of Law. This means that the burden is on Kansas to prove that their law serves a compelling interest — meaning one that’s more than just important or beneficial — and that it’s narrowly tailored to that interest so it doesn’t stop more speech than it has to.
The ACLU’s case here hinges on one main thing, Levy said: whether the 250-foot Kansas law is too vague or stops more speech than it really needs to.
When such laws are too vague, Levy said, “People are kind of forced to self-censor, they don’t know what they can or can’t say. If you’re a law abiding citizen and you want to avoid encounters with the law you might refuse to speak to avoid brushing up against the law or being prosecuted.”