Hobart Ward Anderson v. Lloyd E. Spear

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0025P (6th Cir.)
File Name: 04a0025p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
HOBART WARD ANDERSON, et
al.,
Plaintiffs-Appellants,
v.
LLOYD E. SPEAR, et al.,
Defendants-Appellees.
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No. 02-5529
Appeal from the United States District Court
for the Eastern District of Kentucky at Ashland.
No. 99-00189—Joseph M. Hood, District Judge.
Argued: September 17, 2003
Decided and Filed: January 16, 2004
Before: SILER, BATCHELDER, and COOK, Circuit
Judges.
_________________
COUNSEL
ARGUED: Thomas J. Marzen, BOPP, COLESON &
BOSTROM, Terre Haute, Indiana, for Appellants. D. Brent
Irvin, OFFICE OF THE ATTORNEY GENERAL, Frankfort,
Kentucky, Rosemary F. Center, KENTUCKY REGISTRY
2 Anderson, et al. v. Spear, et al. No. 02-5529
OF ELECTION FINANCE, Frankfort, Kentucky, for
Appellees. ON BRIEF: Thomas J. Marzen, James Bopp, Jr.,
BOPP, COLESON & BOSTROM, Terre Haute, Indiana, for
Appellants. D. Brent Irvin, Janet M. Graham, OFFICE OF
THE ATTORNEY GENERAL, Frankfort, Kentucky,
Rosemary F. Center, Jennifer B. Hans, KENTUCKY
REGISTRY OF ELECTION FINANCE, Frankfort,
Kentucky, for Appellees.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. Appellant
Hobart Ward Anderson (“Anderson” or “Appellant”) appeals
the decision of the district court granting summary judgment
to Defendants-Appellees Kentucky Board of Elections, the
Registry of Finance (“Registry”), the Commonwealth
Attorneys as a class, and the Kentucky Attorney General on
nine separate claims challenging the constitutionality of
various provisions of Kentucky election law. Having
concluded that the district court erred in its evaluation of the
substantial First Amendment interests asserted by Anderson,
we reverse the district court except as to two
claims–Anderson’s equal protection claim, and his claim that
the “trigger” provision is unconstitutional as applied–and
remand for proceedings consistent with this order.
I.
Hobart Anderson filed to run as a write-in candidate in
Kentucky’s 1999 gubernatorial election. Because he and his
slated running mate were not eligible to appear on the ballot
for the general election, his campaign was not entitled to
receive matching funds under Kentucky’s Public Financing
Campaign Act. Anderson alleges that the statutes he
challenges proscribed several of the campaign activities he
wanted to conduct, including: distributing within 500 feet of

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No. 02-5529 Anderson, et al. v. Spear, et al. 3
polling places literature instructing voters on how to cast a
write-in ballot; soliciting and accepting contributions after the
date of the general election; accepting cash contributions by
selling items at fundraisers; lending over $50,000 of his own
funds to his campaign; and soliciting and accepting
contributions within twenty-eight days of the election. Mr.
Anderson therefore filed this suit in October 1999 seeking
declaratory and injunctive relief pursuant to 42 U.S.C.
§ 1983. The suit challenges nine separate Kentucky statutes
regulating the conduct of elections and campaign finance:
(1) KRS § 117.235(3), which prohibits “electioneering”
within 500 feet of polling places; (2) § 121A.080(6), a “turn-
over” provision requiring campaigns to turn over unexpended
funds to the State; (3) § 121.150(16), prohibiting post-election
solicitation of contributions; (4) § 121A.050(2), prohibiting
cash contributions; (5) § 121.150(13) & (21), providing that
a candidate may not loan more than $50,000 of his personal
funds to his campaign; (6) §§ 121.150(24) & 121A.030(5),
prohibiting solicitation and acceptance of contributions within
twenty-eight days before an election; (7) § 121A in general,
regulating the public financing of elections;
(8) § 121A.080(4)-(5), which allows candidates receiving
public financing to exceed the contributions limit when other
candidates do so; and (9) § 121A.010(11), which defines
“contribution” as including a candidate’s personal funds. The
district court granted summary judgment for the Defendants
on all counts. Anderson timely appealed to this court. The
parties do not dispute any facts, and all of the issues presented
in the lawsuit are questions of law.
II.
This court reviews the grant of a motion for summary
judgment de novo. Faughender v. City of North Olmsted, 927
F.2d 909, 911 (6th Cir. 1991). As an initial matter, we must
consider whether certain claims in the case are moot. Counsel
at oral arguments asked us to take judicial notice of the fact
that the Kentucky legislature has defunded the public finance
4 Anderson, et al. v. Spear, et al. No. 02-5529
program in the most recent budget, which states in relevant
part:
Notwithstanding KRS 118.255(3), 121.150,
121A.015(5), 121A.020, 121A.030, 121A.040,
121A.060, and 121A.080, no funds shall be appropriated
to or received into the election campaign fund
established by KRS 121A.020, and the Registry of
Election Finance shall make no transfer of funds to any
slate of candidates from the election campaign fund for
any election. Notwithstanding KRS 121.150(24) and
121A.030(5), slates of candidates may accept
contributions within the last 28 days immediately
preceding a primary or general election, and in addition
to the provisions of KRS 121A.020(5), all contributions
to slates of candidates made within the last 28 days
immediately preceding a primary or general election
shall be reported to the Registry of Election Finance
within 24 hours of receipt. All other statutes contained
in KRS Chapter 121A shall remain in effect for all slates
of candidates, except that KRS 121A.080(6) shall not
apply, and slated candidates shall be governed instead by
KRS 121.180(10), and KRS 121A.030(4) shall not apply,
and all slated candidates may receive contributions from
permanent committees which, in the aggregate, shall not
exceed 25 percent of the contributions received by the
slate in any one election up to a maximum of $300,000
in any one election.
Act of March 23, 2003, ch. 156, 2003 Ky. Laws H.B. 269.
Accordingly, Appellant will not be subjected to the operation
of the public finance system, the 28-day prohibition on
contributions prior to elections, or the trigger provision for the
duration of Kentucky’s current budget cycle. The question
then is whether Anderson’s claims related to those features of
the public financing system continue to raise issues
“affect[ing] the rights of the litigants” in this case. North
Carolina v. Rice, 404 U.S. 244, 246 (1971).

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1There is no claim that the operation of the appropriations act
amended or repealed the relevant campaign funding statutes, only that the
operative provisions were suspended by the appropriations act. Similarly,
there is no claim that this court would not have an independent basis for
judicial review so long as there is a valid case o r controversy.
This court has previously found that Congress may, through
appropriations acts,“suspend, amend, or repeal a statute, so
long as it does so clearly.” Mullis v. United States, 230 F.3d
215, 217 (6th Cir. 2000). In Mullis, the plaintiff filed a
petition asking the court pursuant to 18 U.S.C. § 925(c) to
remove his firearm disability. Section 925(c) permits a
district court to review a decision by the Secretary of
Treasury to deny an application for relief of firearms
disability. However, Congress had passed eight consecutive
appropriations bills prohibiting the Secretary of Treasury
from expending any funds to review these applications. Id. at
217. The court found that Congress clearly intended to
suspend all relief that was otherwise statutorily authorized by
defunding such relief. Id. at 218. In Mullis, the issue before
us was whether the court’s jurisdiction under § 925(c)
extended only to reviewing the discretion of the Secretary, or
whether the federal court had a basis for independent judicial
review of Mullis’s application for removal of disability. Id. at
219. The case did not involve a facial challenge, but only
addressed Mr. Mullis’s particular petition. Because the
Secretary had not rendered a decision to review, this court
found that the federal courts lacked jurisdiction.
Applying to state lawmakers Mullis’s premise that the
legislature may “suspend, amend or repeal” a statute by clear
operation of appropriation acts, the question arises whether
the acts of the Kentucky legislature in defunding the various
parts of this campaign funding scheme renders Mr.
Anderson’s claims moot.1 Importantly, Mr. Anderson’s
claims are not limited to this budget cycle. Appellant
challenges the application of the 28-day prohibition on
contributions and the trigger provision as applied to his
6 Anderson, et al. v. Spear, et al. No. 02-5529
candidacy in 1999, and challenges the apportionment of
public benefits accomplished by the public funding scheme
on its face. As is readily apparent, the action of the
legislature suspending the operation of certain provisions of
the campaign law does not eliminate the case or controversy
which existed by the operation of those laws in 1999.
Furthermore, because these laws are still on Kentucky’s
books, the legislature may choose at any time to allocate
funds to the public finance program. Indeed, unlike Mullis,
in which the legislature evidenced its intent to cease the
operation of the law without regard to budgetary
considerations, here there is nothing to suggest that the
Kentucky legislature will not choose to refund the campaign
scheme at the first fiscally feasible moment. The legislature’s
suspension of the operation of extant laws is not sufficient to
deprive this court of jurisdiction, for is well-settled that
“‘voluntary cessation of allegedly illegal conduct does not
deprive the tribunal of power to hear and determine the case,
i.e., does not make the case moot.’” DeFunis v. Odegaard,
416 U.S. 312, 318 (1974) (quoting United States v. W. T.
Grant Co., 345 U.S. 629, 632 (1953)). Accordingly, because
Mr. Anderson’s claims involve a live case or controversy,
Kentucky’s recent budgetary legislation does not deprive this
court of jurisdiction.
III.
WHETHER KENTUCKY'S RESTRICTION ON ELECTIONEERING
WITHIN 500 FEET OF POLLING PLACES (KRS § 117.235) IS
UNCONSTITUTIONALLY OVERBROAD
The Kentucky legislature prohibits campaign activities near
polling places on the date of an election: “No person shall, on
the day of any election . . . do any electioneering at the
polling place or within a distance of five hundred (500) feet
of a county clerk’s office or any entrance to a building in
which a voting machine is located . . . .” KRS § 117.235(3).
Anderson brings a two-pronged challenge to the statute,
alleging first that the 500-foot buffer zone is generally

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No. 02-5529 Anderson, et al. v. Spear, et al. 7
overbroad in violation of the First Amendment, and second
that the definition of electioneering is unconstitutionally
overbroad because it includes political speech that does not
expressly advocate the election or defeat of candidates for
public office. We examine these arguments in turn.
Our inquiry is guided by the Supreme Court’s decision in
Burson v. Freeman, 504 U.S. 191 (1992), in which the Court
examined the constitutionality of a 100-foot “campaign-free
zone” surrounding polling places. First, Burson requires the
application of exacting scrutiny to restrictions on political
speech around polling places. Burson, 504 U.S. at 198
(noting that to survive review, a statute must be necessary to
serve a compelling state interest and narrowly drawn to
achieve that end). While exacting scrutiny does apply, the
Supreme Court adopted a modified “burden of proof” in cases
in which exercise of a First Amendment right threatens to
interfere with the act of voting itself. Id. at 209 n.11. Under
this modified burden, the state must demonstrate that its
response is “reasonable and does not significantly impinge on
constitutionally protected rights.” Id. at 209 (emphasis in
original) (citation omitted).
The modified burden of proof is an important component
of the Burson analysis, for it stands as the Supreme Court’s
recognition of the deference due to the states in our federal
system of government. The states’ ability to conduct
elections–particularly for state officers–should not be usurped
or interfered with by the federal courts absent a clear violation
of the United States Constitution. By modifying the burden,
the Burson Court recognized that states are uniquely equipped
to manage their own elections, which “vary from year to year,
and place to place,” making it “difficult to make specific
findings about the effects of a voting regulation.” Id. This
modified burden therefore assures that the state’s interest in
conducting elections is respected, while assuring that the First
Amendment rights are not significantly burdened by
overbroad regulations.
8 Anderson, et al. v. Spear, et al. No. 02-5529
Applying this standard, the Burson Court recognized two
compelling interests for buffer zones around polling places:
1) the state’s duty to protect “the right to vote freely for the
candidate of one’s choice,” id. at 199 (quoting Reynolds v.
Sims, 377 U.S. 533, 555 (1964)); and 2) the state’s interest in
preserving “the integrity and reliability of the electoral
process itself,” id. (quoting Anderson v. Celebrezze, 460 U.S.
780, 788 n.9 (1983)). Put more succinctly, the Court
recognized the states’ interest in preventing voter intimidation
and election fraud. Burson, 504 U.S. at 206.
Having found a compelling interest, the Court then went
through the history of measures enacted in the states and in
other countries to address voter intimidation and election
fraud. It concluded that “widespread and time-tested
consensus demonstrates that some restricted zone is necessary
in order to serve the States’ compelling interests in preventing
voter intimidation and election fraud.” Id. at 206. The Court
therefore upheld a 100-foot buffer zone surrounding a polling
place. However, of particular relevance to the instant inquiry,
the Burson Court refused to provide a bright-line rule as to
how far the State could regulate speech around a poll. Id. at
210-11 (“[T]his Court has not employed any ‘litmus-paper
test’ that will separate valid from invalid restrictions.”)
(internal citations omitted). Instead, it offered two indications
of how to determine “how far is too far”–that is, when a
buffer zone is large enough to significantly impinge on
protected First Amendment rights. First, the Court noted that
the difference between the 100-foot boundary upheld and the
25-foot boundary recommended by those challenging the law
was “a difference only in degree, not a less restrictive
alternative in kind.” Id. at 210. Second, the Court clarified
that “[a]t some measurable distance from the polls . . .
governmental regulation of vote solicitation could effectively
become an impermissible burden akin to the statute struck
down in Mills v. Alabama, 384 U.S. 214 (1966) [(striking
down a prohibition on editorials endorsing candidates run on
election day)].” Id. at 210. Thus, at some undetermined
distance, the Burson Court acknowledged, a regulation could

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No. 02-5529 Anderson, et al. v. Spear, et al. 9
be different in kind insofar as it impermissibly burdens First
Amendment speech.
Appellant asserts that under the Burson standard, the 500-
foot buffer zone fails because it is not narrowly tailored.
Appellant’s use of “narrowly tailored” to describe the test is
not precisely correct, and fails to grant the State the deference
required. While Burson does refer to narrow tailoring, it later
applies the loosened requirement which gives deference to a
state regulation so long as it is reasonable and does not
“significantly impinge on constitutionally protected rights.”
Burson, 504 U.S. 209 (emphasis omitted) (citation omitted).
Applying the Burson “significant impingement” test, we
conclude that the 500-foot buffer zone is facially overbroad.
The most recent Kentucky Elections Laws had their genesis
in 1987, when the Acting Kentucky Attorney General
appointed a Task Force to investigate election fraud. The
Report of the Attorney General’s Task Force on Election
Fraud begins its statement concerning the problem of
electioneering near polling places with the justification of
preventing corruption:
Presently, the law allows “electioneering” to occur
outside a 50 foot radius from the voting machine. This
makes it fairly easy for persons interested in subverting
the election process to accost voters going to and from
the polls and harass or intimidate them within close
proximity of the voting booth itself.
But the Task Force does not stop there, and suggests that the
State’s rationale also may include suppression of protected
speech:
Further, many people find even legitimate
“electioneering” such as handing out brochures to be
offensive when conducted near the polling place,
especially when the resulting effect is to be required to
“run a gauntlet” in order to enter the polling place.
10 Anderson, et al. v. Spear, et al. No. 02-5529
After finding the existing 50-foot buffer zone inadequate to
address the potential for election fraud and “unnecessary”
electioneering, a subsequent Special Commission on Election
Reform recommended that the buffer zone be increased to
500 feet. The Commission and the Task Force subsequently
agreed on suggesting 1000 feet. The buffer zone was reduced
in the Kentucky House to 500 feet, which is the distance
ultimately codified in KRS § 117.235.
While the State does provide ample evidence of Kentucky’s
history of election fraud and corrupt elections practices,
glaringly thin is its evidence as to why the legislature, the
Task Force, or the Commission ultimately arrived at a
distance of 500 feet. Even Hiram Ely III, Director of the
Kentucky Task Force on Election Fraud, cannot recall how
his Task Force arrived at its proposed recommendation of
1,000 feet. Indeed, when pressed in his deposition, Mr. Ely
could not even say whether the Task Force would have found
2,000 feet unreasonable:
Q: [A]ccording to your Task Force report, you
recommended that 1,000-foot be where the line be
drawn. I would infer from that that 2,000 feet would
probably be unreasonable?
A: I don’t know. We just came up – we came up with
that number through the process I described. We thought
it was reasonable for the reasons I have stated. And
that’s all, really, I can say about it.
What little discussion is in the record, however, suggests that
the State sought through the 500 foot barrier to prohibit all
electioneering speech on election day. For example, the
minutes of Second Meeting of the Special Commission on
Election offers the following default rationale for adopting the
500 foot barrier:
A thorough discussion ensued relative to instituting a
statewide ban of electioneering on election day. The

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No. 02-5529 Anderson, et al. v. Spear, et al. 11
Commission voted by 11 yes and 4 abstentions that there
should be a statewide prohibition of electioneering on an
election day if such a ban can be established
constitutionally. If this is not possible, the Commission
proposes to recommend prohibiting electioneering as
defined in KRS 117.235 within a 500 foot radius of the
entrance to the polling place which is generally used by
the voters.
It thus appears that Kentucky, to the extent possible, sought
to eliminate all electioneering on election day. This Burson
simply does not permit. See Burson, 504 U.S. at 210 (“At
some measurable distance from the polls, of course,
governmental regulation of vote solicitation could effectively
become an impermissible burden . . . .”)
While unable to provide much in the way of an ex
ante justification for the specific distance, Kentucky
nonetheless proffers numerous after-the-fact testimonials to
support the decision to expand the buffer zone to 500 feet.
First, Kentucky cites the affidavit of Darrell Fugate, an
admitted vote buyer, for the proposition that he bought votes
from distances beyond 100 feet of the polling places. Mr.
Fugate's testimony is interesting, but not for the reason cited
by the State. Rather, he confirms that the regulation has had
a detrimental effect on constitutionally protected speech.
("[T]he area surrounding the polling places is no longer
crowded with people electioneering and attempting to hand
out cards.") Furthermore, Mr. Fugate confirmed that he
stopped buying votes not because of the 500-foot speech ban,
but rather because of the increase in the criminal penalty for
buying votes. Mr. Fugate admits that "[a]fter the legislature
changed the statute to make vote selling and vote buying a
felony instead of a misdemeanor, I no longer bought votes."
By contrast, he speculates that the 500-foot barrier would
have only "hindered" his ability to buy votes. Accordingly,
Mr. Fugate’s testimony undermines the State’s position by
demonstrating first, that the 500-foot restriction substantially
impinges on protected speech, and second, that the
12 Anderson, et al. v. Spear, et al. No. 02-5529
government’s interest is better served through stricter
penalties than through broad bans on protected speech.
Kentucky next claims that the 500-foot barrier puts the vote
buyer far enough away that he cannot discern signals
commonly used between vote buyers and corrupt poll
workers/insiders to determine whether the voter has cast his
vote according to the wish of the would-be vote buyer.
Referring to a series of photographs taken at polling places
depicting a subject signaling by taking off his hat, Appellees
assert that "[a]t 100 feet, one can easily see a visual signal
such as taking off a hat. At 500 feet, it is virtually impossible
to ascertain whether a signal is being given." This evidence,
however, appears to be contradicted by the testimony of Mr.
Ely, who stated during deposition that the problem of
signaling was essentially solved by making the buffer zone
apply to the building, rather than to the polling booth itself:
Q: During the – during the decision regarding the 1,000-
foot number, do you recall whether–what were you
talking about a minute ago–the visual signaling–whether
that was a factor in your-all’s consideration?
A: I think it was. And I think that was more related to
moving it outside the building as opposed to away from
the polling place. We used the building as the solution.
This testimony suggests that the major issue in eliminating
signaling was making sure that the building was free of
electioneers and vote buyers, rather than placing greater
geographic distance between the building and the
electioneers. Indeed, having solved the problem by fixing the
distance to the building rather than the voting booths, Mr.
Ely’s next statement suggests that something very different
from preventing voter intimidation and voter fraud motivated
the State to expand the distance outside the building:
I think the–and again, I don’t remember how we settled
on the number. One of the concerns about it, once you

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No. 02-5529 Anderson, et al. v. Spear, et al. 13
got outside the building, was you didn’t want people to
have to work their way to the building from the parking
lot. You wanted to be able to have somebody park their
car and go vote. If they–if they–there would be plenty of
electioneers outside 1,000 feet. If they wanted to see
them, they could go see them. But if they wanted to
simply get out of their car and go vote without having to
deal with that, we felt they should be able to do that.
Accommodating the desire of voters to completely avoid
contact with anyone handing out legitimate electioneering
communications is a far cry from preventing voter
intimidation and voter fraud. This theme of completely
preventing voter contact with those who have a legitimate
electioneering message was repeated by Kentucky in its
reliance on the deposition of James Lewis, who ran for county
clerk in 1985. Mr. Lewis spoke about the number of
campaign workers, and the crowding around polling places.
He testified that with 82 people on the ballot, there were at
least 150 poll workers. Again, however, it appears that
Appellees’ interests were often at best aesthetic and at worst
suppression of constitutionally protected speech:
You know, it was almost impossible to get in to vote.
You had handfuls of cards that people came in, threw
down in the floor, threw down in the polling booth,
because they weren't interested in those. And I
remember, you know, the first election when we had the
500 feet ban, I had, you know, comment after comment
from people, that this was the way elections should be,
that, you know, they didn't have to run the gauntlet, they
didn't have to take all these cards that they didn't want to
take, because they didn't want to offend people by not
taking their card. It really has changed the appearance of
the polling places. You don't have the crowds hanging
around on election day.
While Mr. Lewis makes one passing reference to intimidation
and vote buying, his testimony is primarily concerned with
14 Anderson, et al. v. Spear, et al. No. 02-5529
restraining protected speech, which voters disfavored for
reasons of mere convenience. Given these statements, it
should not be surprising that Kentucky closes its argument in
this section by relying on the "right of every person ‘to be left
[sic] alone' . . . ." Ky. AG. Br. at 21 (quoting Rowan v.
United States Post Office Dept., 397 U.S. 728 (1970)). Thus,
the government suggests an interest based upon the fact that
"[m]any voters simply do not want to be approached on their
way to the voting booth."
Again, this interest is a far cry from the prevention of
corruption and intimidation–the only justifications the
Supreme Court recognized in Burson to meet the
requirements of exacting scrutiny. The Supreme Court has
long recognized that “[m]ere legislative preferences or beliefs
respecting matters of public convenience may well support
regulation directed at other personal activities, but be
insufficient to justify such as diminishes the [First
Amendment] rights so vital to the maintenance of democratic
institutions.” Schneider v. State of New Jersey, Town of
Irvington, 308 U.S. 147, 161 (1939). Appellees’ reliance on
Rowan’s limited right to be left alone does not tip the
jurisprudential scales. The Supreme Court generally has
resisted the invitation to extend to public spaces the limited
right of individuals to be left alone inside their homes, even
when the messages may prove to be offensive to the listener.
See generally National Socialist Party of Am. v. Skokie, 432
U.S. 43 (1977) (granting a stay to an injunction of a Nazi
march scheduled to be conducted in a neighborhood that
included numerous holocaust survivors, who respectively had
voiced their desire to be left alone); see also Cohen v.
California, 403 U.S. 15 (1971) (noting that the risk of offense
was not a basis for restricting the ability of a speaker to wear
a jacket adorned with a vulgar message in a courthouse, but
rather that those offended may overt their eyes). The
Kentucky AG points to an exception to the rule that the right
to be left alone applies only in the solitude of one’s home:
the Supreme Court’s recent decision in Hill v. Colorado, 530
U.S. 703 (2000), applying the right to be left alone to buffer

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No. 02-5529 Anderson, et al. v. Spear, et al. 15
zones around abortion clinics. However, this decision
addressed a narrower regulation (100-foot buffer zone with 8-
foot floating buffers) in the unique context of abortion. As
the dissent in Hill noted, the Court’s First Amendment
jurisprudence in the abortion context is different in kind from
its First Amendment jurisprudence outside the abortion
context, resembling an “‘ad hoc nullification machine’ that
the Court has set in motion to push aside whatever doctrines
of constitutional law stand in the way of that highly favored
practice.” Hill, 530 U.S. at 741 (Scalia, J., dissenting)
(quoting Madsen v. Women's Health Center, Inc., 512 U.S.
753, 785 (1994) (Scalia, J., concurring in judgment in part
and dissenting in part)). It is therefore dubious at best that
this so-called right to be left alone, which under Rowan has
peculiar application to the home, should be extended to those
approaching polls, especially where the Burson Court did not
do so. The Cohen case is instructive regarding the limits of
the right to be left alone found in Rowan:
While this Court has recognized that government may
properly act in many situations to prohibit intrusion into
the privacy of the home of unwelcome views and ideas
which cannot be totally banned from the public dialogue,
e.g., Rowan v. United States Post Office Dept., 397 U.S.
728, 90 S. Ct. 1484, 25 L. Ed.2d 736 (1970), we have at
the same time consistently stressed that 'we are often
'captives' outside the sanctuary of the home and subject
to objectionable speech.' Id., at 738, 90 S. Ct., at 1491.
The ability of government, consonant with the
Constitution, to shut off discourse solely to protect others
from hearing it is, in other words, dependent upon a
showing that substantial privacy interests are being
invaded in an essentially intolerable manner.
Cohen, 403 U.S. at 21. If the right to be left alone provides
an insufficient basis for the states to restrict the display of
profanity in the courtroom or Nazis marching down
residential streets occupied by objecting holocaust survivors,
then the State’s interest in assuring that voters are not
16 Anderson, et al. v. Spear, et al. No. 02-5529
subjected to any unwanted campaign speech alone cannot be
a sufficient basis to regulate that clearly protected speech.
Thus, notwithstanding the justifications offered, the
evidence provided by Kentucky suggests that the buffer zone
was intended to cut off all electioneering speech. This is
consistent with the distance of the speech restriction, which,
based on the pictures of the polling places in the record,
would place many electioneers far beyond the point where
they could come into contact with voters. We need only
consider how large Kentucky’s 500-foot barrier is to
recognize the degree to which the restriction impinges on free
speech. At first blush, this buffer zone might appear to be
five times as large as the 100-foot buffer zone at issue in
Burson–an expansion which alone might generate concern.
But such a calculation fails to take into account the fact that
the buffer zone runs in all directions from the building.
Therefore, the buffer zone, unless it is interrupted by private
property, covers an area 25 times larger than the area at issue
in Burson. The regulation has the potential to silence
constitutionally protected speech for 18 acres around a voting
booth, and guarantees that those wishing to express their
opinions about the election are prohibited from coming within
the length of 1 and 2/3 football fields of the polling place.
The geographic scope of this regulation alone raises
constitutional concerns. See NAACP v. Button, 371 U.S. 415,
438 (1963) (“Broad prophylactic rules in the area of free
expression are suspect.”).
Burson permits states to create buffer zones around polling
places for two purposes only: the prevention of voter
intimidation and the prevention of corruption. Kentucky’s
own witnesses make clear that the extreme geographic
distance was not selected for these permissible purposes, but
was intended to prevent voters from being bothered by
constitutionally protected speech. This Burson does not
permit.

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No. 02-5529 Anderson, et al. v. Spear, et al. 17
At least one other court has found that a 500-foot buffer
zone fails the standard established in Burson. See Calchera
v. Procarione, 805 F. Supp. 716 (E.D. Wis. 1992). Appellees
attempt to distinguish Calchera by noting that Kentucky’s
statute has an exception for electioneering on private
property, while the statute at issue in Calchera did not.
Appellees therefore argue that at voting places surrounded by
private property, electioneering may occur within 500 feet,
thereby obviating what would otherwise be 750,000 sq. feet
of enforced silence. But the statute’s exception is far
narrower than Appellees would have this court believe. The
private property exception reads:
Nothing contained in this section shall prohibit
electioneering conducted within a private residence or
establishment other than that in which the polling place
is located by persons having an ownership interest in
such property.
KRS § 117.235(3) (emphasis added). This exception is
substantially narrowed in two ways by its own terms. First,
the word “within” makes the exception virtually non-existent
by prohibiting any political speech outside the interior
confines of the actual house or business. Based upon the
plain language of the statute, an individual who owns a house
within 500 feet of a polling place may not display a political
yard sign, or stand on his lawn or near the edge of his
property distributing literature, because this speech would not
be “within” a private residence or establishment. Indeed, the
only place that the property owner would be free to speak
would be physically inside his own home. It strains credulity
to assert that a statute is narrowly tailored because it exempts
residential living rooms. Second, the statute only exempts
speakers who have an ownership interest in the property.
Therefore, the owner of a home or business could not invite
a campaign worker into her home or establishment to speak
about the election without running afoul of the 500-foot
restriction on campaign speech. Contrary to the State’s
18 Anderson, et al. v. Spear, et al. No. 02-5529
assertion, this wafer-thin exception does not cure the
overbroad speech regulation.
Furthermore, while it is laudable (and requisite) that the
Kentucky statute exempts private property, this carve-out
does very little for voting places surrounded by public
parking lots and roads. The problem of buffer zones
surrounding urban voting places was recognized in Louisiana
v. Schirmer, 646 So.2d 890, 901 (La. 1994), in which the
court noted that buffer zones raise serious concerns
in a crowded urban context, where, because of greater
population density, polling places tend to be more
closely situated. In such circumstances the 600 foot
[buffer zone] radius may often include a large number of
surrounding streets, alleyways, and neutral grounds, with
the application of the statute as written stifling political
speech in traditional public fora.
Id. Accordingly, for urban voting places in Kentucky, the
500-foot barrier does create 750,000 sq. feet of silence, and
threatens to stifle speech in public fora. The fact that the
State recognizes that it may not trample free speech within
private property does not relieve it of its obligations under
Burson to avoid significantly impinging on First Amendment
rights on public property.
To contrast Calchera, Appellees point this court to
Schirmer v. Edwards, 2 F.3d 117 (5th Cir. 1993), in which the
Fifth Circuit upheld Louisiana’s 600-foot buffer zone around
polling places. But see Louisiana v. Schirmer, 646 So.2d 890
(finding that a 600-foot buffer zone applied to all political
speech was overbroad). The Fifth Circuit found that
Louisiana had a compelling interest in keeping poll
workers–who the State demonstrated were used to intimidate
voters–from impeding the voting process, and suggested that
the difference between Louisiana’s previous 300-foot barrier
and the 600-foot barrier is only a difference in degree. Id. at
122. By contrast, the evidence presented by Kentucky’s own

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No. 02-5529 Anderson, et al. v. Spear, et al. 19
witnesses suggests that the 500-foot barrier is different in
kind: it is designed to prevent voters from having contact
with any speech whatsoever immediately prior to voting.
This overbroad restriction significantly impinges on protected
speech, and fails the test established by Burson.
Overbreadth of “Electioneering”
Appellant also challenges the 500-foot barrier by claiming
that its restriction on “electioneering” is overbroad, and
captures more constitutionally protected speech than is
necessary to promote the State’s interest. The 500-foot buffer
zone prescribed by Kentucky law applies to electioneering,
which is defined to include “the displaying of signs, the
distribution of campaign literature, cards, or handbills, the
soliciting of signatures to any petition, or the solicitation of
votes for or against any candidate or question on the ballot in
any manner, but shall not include exit polling.” KRS
§ 117.235(3). Counsel for the Kentucky State Board of
Elections informed Mr. Anderson that distributing
instructions to voters on how to cast a write-in votes “would
be considered ‘electioneering’ and, therefore would be subject
to the restrictions of KRS § 117.235 (e.g., [sic] this practice
would be precluded at the polling place or within five-
hundred (500) feet of the voting place, etc.).”
Mr. Anderson challenges the buffer zone as overbroad
based on the content proscribed by the definition of
electioneering. Specifically, Anderson suggests that buffer
zones should be applied only to “express advocacy,” and not
to “issue advocacy.”
To understand the difference between express advocacy and
issue advocacy, we must look to the seminal case of Buckley
v. Valeo, 424 U.S. 1 (1976). In Buckley, the Supreme Court
interpreted a provision of the Federal Election Campaign Act
(“FECA”) that capped the amount of independent
expenditures an individual could make “relative to a clearly
identified candidate . . . .” Id. at 39. The statute therefore
20 Anderson, et al. v. Spear, et al. No. 02-5529
2The term “independent expenditure,” which refers to money spent
by an individual to expressly advocate the election o r defeat of a clearly
identified candidate, should not be confused with candidate or campaign
expend itures. Under Buckley, candidate or campaign expenditures may
not be limited, because such limitations would operate as a direct
limitation on the speech of the cand idate. Independent exp enditures,
however, are treated like contributions, and under Buckley may be
subjected to limitations.
treated expenditures that were made by individuals other than
the candidate or the candidate’s campaign as subject to
contribution limitations if the expenditure satisfied the vague
requirement of being “relative to a clearly identified
candidate.”2 In interpreting this section, however, the Court
was confronted with a substantial statutory vagueness and
overbreadth issue. See McConnell v. Federal Election
Comm’n, No. 02-1674, slip op. at 83 (U.S. Dec. 10, 2003). If
the Court did not circumscribe the term “relative to,” the
regulation could apply to broad categories of issue-related
speech, which may or may not have any relation to the
election or defeat of specific candidates. In order to avoid
overbreadth, the Court utilized a bright-line rule, and found
that “relative to” referred only to expenditures using terms of
express advocacy, which it defined as words such as vote for,
elect, support, cast your ballot for, Smith for Congress, vote
against, defeat, and reject. Id. at 83-84; see also Buckley, 424
U.S. at 44 & n.52. By offering a narrowing construction, the
Supreme Court interpreted the statute so as to avoid sweeping
in more protected speech than is necessary to prevent
corruption.
Anderson asserts that the rationale behind the express
advocacy distinction applies with equal force in the Burson
context. Kentucky responds by noting that Burson, which
was decided after Buckley, did not make any distinction
between issue and express advocacy. But it would be extreme
indeed to infer a rejection of the theory from silence,
especially where there is no evidence suggesting that the
argument was ever raised before the Burson Court.

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No. 02-5529 Anderson, et al. v. Spear, et al. 21
Kentucky begins its opposition to applying an issue
advocacy/express advocacy distinction by stating that “[n]o
court has ever applied these concepts to the protection of the
integrity of the polling place.” For this proposition, Kentucky
again cites Schirmer v. Edwards, in which the Fifth Circuit
upheld a complete ban on politicking within a 600-foot zone
of a polling place. Appellees interestingly fail to address the
subsequent decision of the Louisiana Supreme Court in that
very case, which did apply something like an issue
advocacy/express advocacy distinction. In Louisiana v.
Schirmer, the court found that a complete ban on all political
speech (that is, both issue advocacy and express advocacy)
within 100 feet of a polling place would likely pass muster.
However, the court struck down the same provision when it
was extended out to 600 feet, because at such a great distance
it significantly impinged upon First Amendment rights by
sweeping in adjacent alleys, sidewalks, and other property
traditionally open to political discourse. See 646 So.2d at
901.
We must also take note of the Supreme Court’s recent
decision in McConnell v. Federal Election Commission. In
McConnell, the Supreme Court revisited the express
advocacy/issue advocacy line first drawn in Buckley. See
McConnell, slip op. at 83-86. The McConnell Court stated
that:
a plain reading of Buckley makes clear that the express
advocacy limitation, in both the expenditure and
disclosure contexts, was the product of statutory
interpretation rather than a constitutional command. In
narrowly reading the FECA provisions in Buckley to
avoid problems of vagueness and overbreadth, we
nowhere suggested that a statute that was neither vague
nor overbroad would be required to toe the same express
advocacy line.
Id. at 84-85. Because the Court found that the Bipartisan
Campaign Reform Act’s definition of “electioneering
22 Anderson, et al. v. Spear, et al. No. 02-5529
communication” raised “none of the vagueness concerns that
drove our analysis in Buckley,” the Court found that the
express advocacy distinction was not necessary. Id. at 87. In
eschewing the express advocacy distinction, the Court also
relied upon substantial evidence that the line between express
and issue advocacy had become “functionally meaningless”
as applied to the Federal Election Campaign Act. Id. at 86.
Accordingly, while the McConnell Court disavowed the
theory that “the First Amendment erects a rigid barrier
between express advocacy and so-called issue advocacy,” it
nonetheless left intact the ability of courts to make
distinctions between express advocacy and issue advocacy,
where such distinctions are necessary to cure vagueness and
overbreadth in statutes which regulate more speech than that
for which the legislature has established a significant
governmental interest. And McConnell in no way alters the
basic principle that the government may not regulate a
broader class of speech than is necessary to achieve its
significant interest.
Unlike the statute at issue in McConnell, Kentucky’s statute
is vague, sweeping in, inter alia, “the displaying of signs, the
distribution of campaign literature, cards, or handbills . . . .”
KRS 117.235(3). While this language could be interpreted as
limited to express advocacy, the Kentucky State Board of
Elections has chosen a broader–indeed an overbroad–
interpretation of the statute in finding that instructions on how
to cast an absentee ballot constitute electioneering. Also
unlike McConnell, the record here is devoid of evidence that
such a broad definition is necessary to achieve the State’s
interest in preventing corruption–or, to use
McConnell’s words, that an express advocacy line would be
“functionally meaningless” as applied to electioneering
proximate to voting places.
Accordingly, because Kentucky’s statute is vague and
because the State has failed to provide any evidentiary
support for regulating both express and issue advocacy, we
find that this Court should apply a limiting construction. The

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No. 02-5529 Anderson, et al. v. Spear, et al. 23
reasoning of Buckley, McConnell, Schirmer, and Burson
suggests that a prophylactic restriction which extends to issue
advocacy—that is, protected speech which does not directly
seek to elect or oppose specific candidates—cannot be
maintained unless the state demonstrates that the limitation
was necessary to prevent intimidation and election fraud.
Because Kentucky has failed to demonstrate that interest here,
we apply a narrowing construction to the term
“electioneering,”and find that it may permissibly apply only
to speech which expressly advocates the election or defeat of
a clearly identified candidate or ballot measure.
The question of whether Kentucky may regulate issue
advocacy proximate to the polls raises an issue of broad
constitutional import. While Mr. Anderson’s particular
speech–i.e., providing instructions on how to vote for write-in
candidates–at first glance looks like a relatively narrow class
of speech, his legal challenge to a definition of electioneering
which includes issue advocacy raises constitutional concerns
about a broad class of speech. The Kentucky State Board of
Elections fails to explain why providing instructions on how
to cast a write-in vote would constitute “electioneering” for
the purposes of the statute. Thus, as best we can tell, the
Kentucky law as interpreted by the Board of Elections would
forbid an individual to remind voters to fill in the ovals
completely on optical scan ballots. Given the Board’s
decision, it would also appear that individuals would be
prohibited from displaying signs or distributing leaflets which
fall into core issue advocacy: that is, promoting issues rather
than specific candidates. If “electioneering” includes Mr.
Anderson’s instructing voters on how to cast a write-in vote,
does it also include, for example, parents urging voters to
“support our schools”? All issue-related speech is chilled by
the Board’s interpretation of “electioneering.” However, the
State has failed to provide evidence to support a finding either
that a regulation so broad is necessary to prevent corruption
and voter intimidation, or that the regulation does not
significantly impinge on the rights protected by the First
Amendment.
24 Anderson, et al. v. Spear, et al. No. 02-5529
The Kentucky Attorney General objects that a narrowing
construction of the term “electioneering” would have dire
consequences, and points to Ellis v. Meeks, 957 S.W.2d 213
(Ky. 1997), for support. In Ellis, a candidate was found to
have violated KRS 117.235 by, inter alia, bringing chicken to
poll workers and making it available to voters at polling
places. Appellees suggests that under the Appellant’s theory,
a candidate could engage in “all manner of improper conduct
that may or may not constitute ‘express advocacy’” within
500 feet of a polling place. They offer a parade of horribles,
suggesting that such a rule would allow “a candidate [to]
stand within 500 feet of the polls and hand out $100 bills or
half pints of whiskey to the voters as they enter the polling
place.” As the Appellant rightly responds, such actions
would be conduct–not issue advocacy–and therefore would be
regulable whether or not they occurred within 500 feet of a
polling place. Indeed, many such actions would be covered
by Kentucky’s vote-buying statute. See KRS § 119.205
(“Any person who makes or offers to make an expenditure to
any person, either to vote or withhold his vote, or to vote for
or against any candidate or public question at an election shall
be guilty of a Class D felony.”)
Accordingly, because the statute is overbroad in that it
prohibits speech over too much geography, and because,
absent a narrowing construction it prohibits more speech than
is necessary to meet the State’s protected interest, the decision
of the district court must be reversed.
IV.
WHETHER KENTUCKY’S DEFINITION OF “CONTRIBUTION”
(KRS § 121A.010(11)) IS UNCONSTITUTIONAL ON ITS FACE
In addressing Appellant’s numerous challenges to
Kentucky’s campaign finance statutes, we begin with a
challenge to one of the fundamental terms in Kentucky’s
regulatory scheme: “contribution.”

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No. 02-5529 Anderson, et al. v. Spear, et al. 25
Kentucky’s campaign finance statute defines “contribution”
to include any “[p]ayment, distribution, loan, deposit, or gift
of money or other thing of value . . . .” KRS § 121A.010(11).
This definition is broad, and on its face includes
disbursements by candidates to their own campaigns. Indeed,
other segments of Kentucky’s statutory scheme rely upon this
broad definition of contribution to indirectly regulate these
internal disbursements. In Gable v. Patton, 142 F.3d 940 (6th
Cir. 1998), this court addressed a challenge to KRS
§ 121A.030(5), which, with limited exceptions, prohibits a
candidate from receiving a contribution within 28 days of an
election. Because “contribution” included disbursements
made by the candidate to his own campaign, the 28-day ban
restricted the ability of a candidate to spend any money not
already in the campaign coffers during the final 28 days.
Gable, 142 F.3d at 944. In reviewing the statute, this court
looked to Buckley, and noted that the Supreme Court
“explicitly rejected a lower court’s attempt to characterize
‘the personal funds expended by the candidate on his own
behalf as a contribution rather than an expenditure.’” Id. at
952 (citing Buckley, 424 U.S. at 52-53 n.58). This court
therefore struck down the 28-day prohibition as applied to
“internal” contributions, because the regulation, while using
the term contribution, operated as an impermissible limitation
on candidate expenditures. This distinction is of particular
import because of the dichotomy Buckley recognized between
contributions and expenditures. Candidate expenditures may
not ordinarily be capped (except as a condition of
participation in public funding program), because such
ceilings “impose[ ] a substantial restraint on the ability of
persons to engage in protected First Amendment expression.”
Buckley, 424 U.S. at 52.
This, however, is not the only place in which the regulatory
scheme relies upon a definition of “contribution” to include
candidate contributions. Kentucky offers 2-for-1 matching
funds for those who participate in their public funding
program. Participating candidates must agree to limit their
expenditures to $1.8 million. The statute also contains what
26 Anderson, et al. v. Spear, et al. No. 02-5529
is referred to as a trigger provision, which states that if a non-
participating candidate receives more than $1.8 million in
contributions–where contribution includes disbursements by
the candidate to his own campaign–then the participating
candidate is released from the expenditure ceiling, and may
again receive 2-for-1 matching dollars.
Appellant challenges the definition of “contribution” here,
arguing that the trigger deterred him from making
expenditures. While the challenge is focused on how the term
“contribution” is used in the context of the trigger, the broad
definition is not found in the section of the code related to the
trigger, but rather is given at KRS § 121A.010(11)(a) and
applied throughout the regulatory scheme. Accordingly, for
this court to apply a facial challenge to the term
“contribution” only within the context of the trigger would
require us to ignore the very structure of the statute.
Therefore, we must examine whether the term “contribution,”
defined to include candidates’ disbursements to their own
campaigns, is facially constitutional. We conclude that it is
not.
As this court noted in Gable, Buckley drew a line in the
sand, and prohibited the government from restricting a
candidate’s ability to make expenditures on his own behalf.
By defining contribution to include contributions by the
candidate to his own committee, the statute runs the risk of
limiting expenditures. While Kentucky avoids the brunt of
this problem by exempting candidate contributions to their
own campaigns from otherwise applicable contribution limits,
the problem still exists in those sections of the code where
candidate contributions to their own campaigns are not
exempted from regulation. Thus, by failing to exempt
candidate contributions to their own campaigns from the
trigger provision, Kentucky applies an indirect regulation on
expenditures.
As tempting as it might be to offer a narrowing construction
here, the language of the statute does not permit it. Unlike the

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No. 02-5529 Anderson, et al. v. Spear, et al. 27
definition of electioneering communication, which could be
plausibly and facially read to apply only to express advocacy,
the definition of contribution is not susceptible of a limited
reading, and to save it would require this court to take out its
blue pencil to add an exception—for candidates’ contributions
to their own campaign accounts—to the definition. This kind
of modification is reserved for the legislature. It is for this
court to decide whether the definition of contribution, written
as it is, meets the requirements of the Constitution. Because
Kentucky’s definition of contribution includes what are
candidate expenditures, and because this definition is relied
upon by other segments of the regulatory scheme to indirectly
limit candidate expenditures, the statute infringes upon
constitutionally protected speech. Accordingly, the district
court erred, and the definition of contribution in KRS
§ 121A.010 must be struck down.
V.
WHETHER KENTUCKY’S REQUIREMENT THAT CAMPAIGNS
“TURN OVER” UNEXPENDED CONTRIBUTIONS AND FUND
TRANSFERS TO THE COMMONWEALTH (KRS § 121A.080(6))
IS CONSTITUTIONAL ON ITS FACE AND AS APPLIED TO A
WRITE-IN SLATE OF CANDIDATES
Kentucky law requires disgorgement of campaign funds
remaining in a campaign account after an election.
Specifically, the relevant statute provides that:
[t]he unexpended balance of contributions and fund
transfers in a candidate campaign account of a slate of
candidates which remains after all financial obligations
of the particular election for which the account is
established have been satisfied shall be forwarded to the
registry for deposit in the fund when the account is
closed.
KRS § 121A.080(6). Appellant does not dispute that the
statute may be applied to participants in the public financing
28 Anderson, et al. v. Spear, et al. No. 02-5529
program. Rather, Appellant argues that the statute (both
facially and as applied) violates the First Amendment and the
Takings Clause of the Fifth Amendment by implicating those
campaign slates that do not participate in the public finance
system.
In the trial court, Kentucky conceded that “if read as
applicable to both participating and non-participating
candidates, KRS § 121A.080(6) ‘would create a host of
constitutional problems.’” In order to avoid these problems,
Kentucky urged the trial court to apply a form of the Canon
of Constitutional Avoidance, which states that if there are two
permissible statutory interpretations, a court should choose
the interpretation that will save the statute. See, e.g., Rust v.
Sullivan, 500 U.S. 173, 190-91 (1991). The district court,
relying on Kentucky’s alternative reading, upheld the statute.
Appellees’ alternative reading relies on the fact that the
statute requires disgorgement of “[t]he unexpended balance
of contributions and fund transfers in a candidate campaign
account of a slate of candidates.” Registry Br. at 10 (quoting
KRS § 121A.080(6) (emphasis added)). Emphasizing the
phrase “and fund transfers,” Appellees assert that “[b]y its
plain meaning, the statute contemplates an account with
commingled funds, which include publicly financed,
matching dollars.” Id. at 10-11.
In order to succeed on the Constitutional Avoidance theory,
the reading proffered must be permissible–that is, it cannot be
contrary to the plain language of the statute. We think it is a
strained reading indeed to find that the statute applies only to
those candidate slates that have both unexpended
contributions AND fund transfers. Rather, the natural and
grammatical reading of the sentence is that BOTH types of
funds are subject to disgorgement–whether the candidate has
one or both types of funds in his account.
In addition to the natural and grammatical reading of the
language, it is useful to look at the statute as a whole.

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No. 02-5529 Anderson, et al. v. Spear, et al. 29
Kentucky demonstrated that when it wished to specify
participating or non-participating slates of candidates, it was
capable of doing so with clarity. Indeed, just a few short lines
above this subsection, the statute ably names both
participating and non-participating slates with reasonable
clarity:
If the registry makes a finding of fact, after a public
hearing of which all slates of candidates for Governor
and Lieutenant Governor shall be notified, that in the
course of a primary election, runoff primary election, or
regular election campaign a slate of candidates for
Governor and Lieutenant Governor that has not accepted
the provisions of this chapter has received contributions
or made expenditures in excess of the expenditure limit
as provided in KRS 121A.030(1), the registry shall
certify that those slates of candidates that have elected to
become eligible for fund transfers or may in the future
elect to become eligible for fund transfers shall be
released from expenditure limitations . . . .
KRS § 121A.080(4)(a) (emphasis added). Thus, if the
legislature intended the disgorgement provision to apply only
to participating slates of candidates, reasonable rules of
construction force us to presume that it would have specified
“participating” slates as it did just a few sentences earlier.
Because Kentucky’s suggested reading of the statute does not
comport with the plain language of the statute, the narrow but
implausible reading proffered by the State cannot be relied
upon under the Canon of Constitutional Avoidance.
Appellees alternatively assert that their interpretation of the
statute is entitled to Chevron deference. Appellees, however,
cite no case for the proposition that Chevron deference
applies to state agency determinations. Chevron deference is
predicated on the idea that legislative gaps serve as
delegations from Congress to administrative agencies, whose
determinations are given controlling weight unless they are
“arbitrary, capricious, or manifestly contrary to the statute.”
30 Anderson, et al. v. Spear, et al. No. 02-5529
Chevron U.S.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, 844 (1984). In order to demonstrate that
such deference is due to the Kentucky Registry of Election
Finance, the agency must, at the very least, establish under
Kentucky law that the legislature intends ambiguities or gaps
to be treated as delegations to administrative agencies. The
agency makes no attempt to do so, and accordingly any claim
to Chevron deference must fail.
The Appellees then argue that the claim is not ripe, because
the Registry has never sought to enforce the provision against
Mr. Anderson or any non-participating slate of candidates.
Appellees further assert that they would be precluded from
enforcing the provision based upon their previous litigation
posture, in which they argued that the provision does not
apply to non-participating slates. Kentucky would appear to
be correct insofar as Anderson brings the challenge as
applied. However, Anderson also brings a facial challenge to
the overbreadth of the act. Anderson rightly notes that facial
challenges have been permitted even where the agency
interpreted a provision in such a way as to preclude
enforcement. Thus, in Virginia Soc’y for Human Life, Inc. v.
FEC, 263 F.3d 379, 388-90 (4th Cir. 2001) (“VSHL”), in a
case involving a facially applicable regulation which had not
been applied to its challengers, the Fourth Circuit found the
case ripe because the agency had not promulgated a rule
exempting the parties from the regulation. Id. Similarly, here
there is no evidence that the Registry has issued such a
regulation, and, notwithstanding its harkening to previous
litigation posture, there is nothing to prevent Appellee from
promulgating a policy tomorrow applying the statute to non-
participating slates in future elections. Therefore, because a
party may challenge a statute based upon the “assumption that
the statute's very existence may cause others not before the
court to refrain from constitutionally protected speech or
expression[,]” the facial challenge is ripe for adjudication.
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).

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No. 02-5529 Anderson, et al. v. Spear, et al. 31
Having disposed of Appellees’ alternative arguments, we
are left with a statute that Appellees concede suffers from a
host of constitutional problems. It is clear that the
disgorgement constitutes a per se taking for public use.
See Brown v. Legal Foundation of Washington, 123 S. Ct.
1406, 1418-1419 (2003) (finding that a state’s act of taking
funds out of an IOLTA account would constitute a per se,
rather than a regulatory taking). The Fifth Amendment to the
United States Constitution therefore requires just
compensation, which the State does not provide to those who
do not participate in the public funding program. Therefore,
the district court erred in finding the disgorgement provision
facially constitutional.
VI.
WHETHER KENTUCKY’S BAN ON ALL POST-ELECTION
CONTRIBUTIONS (KRS § 121.150(16)) IS CONSTITUTIONAL
ON ITS FACE
KRS § 121.150(16) prohibits a candidate or his agents from
soliciting or accepting contributions after the date of the
general election. Relying in large part upon Buckley, the
McConnell Court recently restated that contribution limits
must be “closely drawn to match a sufficiently important
[governmental] interest.” McConnell, slip op. at 25-26
(internal quotations and citations omitted).
Kentucky asserts that the statute advances its interest in
avoiding the appearance of quid pro quo corruption. Because
Buckley recognized that avoiding corruption and the
appearance of corruption is sufficient to justify limitations on
contributions, there is little doubt that Kentucky has met its
burden of demonstrating a sufficiently important interest. See
Buckley, 424 U.S. at 26-27.
The question then is whether the regulation is closely
drawn to avoid an unnecessary abridgment of associational
freedoms. On this point, the district court relied on Alaska v.
32 Anderson, et al. v. Spear, et al. No. 02-5529
Alaska Civil Liberties Union, 978 P.2d 597 (Alaska 1999), for
the proposition that:
[p]ost-election time limits . . . far more clearly address
corruption and its appearance because the election has
resolved the critical contingency of which candidate will
hold office. We think this latter impact on associational
rights is narrowly tailored to further compelling state
interests.
Id. at 630. The reasoning of the court and of Appellees who
rely on this argument appears to be that knowledge of the
identity of the successful candidate creates a unique risk of
corruption after an election–a unique risk that makes an
absolute ban on post-election contributions narrowly tailored
to prevent that appearance of corruption. Of course, this
unique risk is a double-edged sword. While it may be that
post-election contributions are more susceptible to the
impression or appearance of corruption when those
contributions are made to the winning candidate, the
appearance of corruption all but disappears when that same
contribution is made to a losing candidate.
Furthermore, the unique risk approach appears to be an
attempt to apply the state interest analysis twice, and to skip
over the closely drawn (or tailored) component of the Buckley
analysis. Thus, to accept Appellees’ argument is to find that
the State has a sufficient state interest in preventing
corruption, and the State’s actions are narrowly tailored
because ex post election contributions are especially
corrupting. But it is not the ban on making contributions after
the election that effectively prevents this appearance of
corruptions; it is Kentucky’s $1,000 contribution limit. While
a contribution to a winning candidate may be considered a
“sure bet” after the election, the contribution cap prevents the
late-comers from being perceived as obtaining or from
actually obtaining any more influence than that which a pre-
election contributor could muster from a maximum
contribution.

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No. 02-5529 Anderson, et al. v. Spear, et al. 33
In further support of the unique problem of post-election
corruption theory, both the district court and Appellees cite to
Ferre v. Florida ex rel Reno, 478 So.2d 1077 (Fla. Dist. Ct.
App. 1985), in which that court warned that:
if post-election contributions were allowed, a candidate
could make large expenditures, secure in the knowledge
that immediately after the election members of some
currently unpopular group whose support for the
candidate had not theretofore been disclosed would send
in contributions to pay off the deficit. The result, of
course, would be that voters may have been deceived into
voting for a candidate with allegiances, or at least
bedfellows, with which they violently disagree.
478 So.2d at 1080 n.10. While disclosure does have a
signaling effect, see Buckley, 424 U.S. at 67 (noting that
“[t]he sources of a candidate’s financial support also alert the
voter to the interests to which a candidate is most likely to be
responsive”), Ferre overstates the concern, at least as it might
apply here. Because Kentucky has a statute capping the
amount that any contributor may give to a candidate, concerns
about a donor “purchasing” undue influence are substantially
mitigated.
Accordingly, because the post-election restriction is not
closely drawn, but rather impinges on associational rights
even where there is little risk of corruption following an
election, the decision of the district court is reversed on this
question.
VII.
WHETHER KENTUCKY’S BAN ON CASH CONTRIBUTIONS
(KRS § 121A.050(2)) IS CONSTITUTIONAL AS APPLIED
Pursuant to KRS § 121A.050(2), Kentucky prohibits any
cash contributions to gubernatorial candidates. In an
Advisory Opinion issued to Anderson, the Registry clarified
34 Anderson, et al. v. Spear, et al. No. 02-5529
that the restriction applied to candidates who do not
participate in the public funding scheme, and that campaign
paraphernalia purchased from the campaign constitutes a
contribution for purposes of the act. Accordingly, candidates
in Kentucky are prohibited from selling a campaign button or
a bumper sticker for one dollar–or less–without receiving the
purchase/contribution price for the item in the form of an
negotiable instrument which identifies both the donor and
recipient.
The district court recognized, and the Registry concedes,
that this cash prohibition is essentially a disclosure
requirement. Relying on Buckley’s determination that the
disclosure requirements of the federal act were constitutional,
the district court upheld Kentucky’s provision.
Buckley requires that disclosure requirements be subjected
to “exacting scrutiny” because of the “significant
encroachment on First Amendment rights . . . that compelled
disclosure imposes . . . .” See Buckley, 424 U.S. at 64.
Placing significant weight on a recent decision of this court
which held that a provision of Akron’s prohibition of cash
contributions in excess of $25 did not impose an undue
burden on the right of association, see Frank v. City of Akron,
290 F.3d 813 (6th Cir. 2002), Appellees argue that
Kentucky’s disclosure requirement in the form of a
prohibition on all cash contributions survives this exacting
scrutiny. The Frank Court found that the Act’s requirement
that modes of payment identify the contributor did not burden
the right to associate, and further declared that “[t]he
provision serves the significant governmental interest of
accountability by forcing contributions to be traceable.” Id. at
819.
While Appellees suggest that Frank disposes of this
question, such a finding would ignore the difference between
the $25 dollar limitation at issue there, and the first penny
requirement at issue here. While this may at first glance
appear to be a difference in degree and not in kind, it is clear

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No. 02-5529 Anderson, et al. v. Spear, et al. 35
3W hile a reporting re quirement would also chill association, a
requirement that the contributor provide only a name or address would
presumptively be less chilling as applied to associational freedo ms.
4In upholding the disclosure requirements, the Buckley Court relied
upon the fact that there was not public disclosure of contributions between
$10 and $10 0 to avoid reaching the question of whether mandatory public
disclosure of so small an amount would "trespass[ ] impermissibly on
that Kentucky’s regulation cannot survive exacting scrutiny
because it is not “closely drawn” to avoid unnecessary
abridgment of associational freedoms. Buckley, 424 U.S. at
25. The State’s ban on all cash contributions effectively
forecloses speech by a large body of individuals who will be
chilled from making a de minimis contribution. While the
parties do not flesh this argument out, we think that as a
matter of common sense, a contributor will be substantially
less willing–or able–to use a negotiable instrument to make
a purchase or contribution of, say, $5 or less than to use such
a financial instrument to make a purchase of $25 or more.
See, e.g., Fior D'Italia, Inc. v. United States, 242 F.3d 844,
846 (9th Cir. 2001), rev'd on other grounds, Fior D'Italia,
Inc. v. United States, 536 U.S. 238 (2002) (noting that
experience demonstrates that consumer spending habits differ
based on whether the transaction is conducted in credit or
cash). Thus, to the extent that Kentucky’s interest in
preventing corruption descends to the smallest contributions,
the State could have easily promoted disclosure by requiring
the campaigns to take the name of the person making the
contribution.3
The Buckley decision itself is instructive of how a statute
may be more closely tailored to the end of providing
disclosure. The federal statute at issue in Buckley established
a two-tier disclosure system, in which campaigns were
required to record the names and addresses of those who
contributed more than $10, and were required to report to the
FEC contributions exceeding $100 in a calendar year.
Buckley, 424 U.S. at 82.4 By relying on reporting for even
36 Anderson, et al. v. Spear, et al. No. 02-5529
First Amendment rights." Id. at 84.
small amounts, rather than a ban on the use of cash, the
federal statute provided for disclosure without placing undue
burdens on those who wish to associate.
Because the Kentucky statute is not closely drawn to avoid
unnecessary abridgment of associational freedoms, we must
reverse the district court’s judgment finding the prohibition
on cash contributions constitutional.
VIII.
WHETHER KENTUCKY’S PROHIBITION ON A CANDIDATE’S
LOANING HIS CAMPAIGN MORE THAN $50,000 (KRS
§ 121.150(13) & (21)) IS CONSTITUTIONAL ON ITS FACE AND
AS APPLIED
Kentucky prohibits candidates from loaning their respective
campaigns more than $50,000 in a given election. KRS
§ 121.150(13). Anderson challenged this provision as being
akin to an unconstitutional restriction on candidate
expenditures.
We conclude that loans are candidate expenditures, unless
and until they are repaid. Kentucky law defines the term
“contribution” to include any loan given to a committee.
KRS § 121A.010(11)(a)1. Under Buckley, a contribution
made by the candidate on his own behalf is an expenditure.
See, e.g., Gable, 142 F.3d at 951 (treating the limitation on
internal contributions during the 28-day window as a
limitation on candidate expenditures). As a matter of
campaign finance law, therefore, limitations on candidate
loans are limitations on campaign expenditures, and
limitations on campaign expenditures are prohibited by
Buckley.

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No. 02-5529 Anderson, et al. v. Spear, et al. 37
The district court rejected the view that loans to campaigns
should be treated as expenditures. First, the district court
cited to the concern that repayment after the election creates
unique risks of quid pro quo corruption. As we have already
found, however, the risk of quid pro quo is substantially
mitigated by individual contribution limits. See
supra, section VI. Furthermore, the risk of quid pro quo is
virtually non-existent where the contribution is made to a
losing candidate who seeks to recoup some of his debt.
Finally, if the risks of after-election repayment are substantial
enough to justify regulation, the court must determine
whether these particular regulations, that is, the loan
limitation and the flat prohibition on post-election
contributions combined, are closely drawn to address the risk
of corruption.
The district court then adopted the reasoning of Wilkinson
v. Jones, 876 F. Supp. 916 (W.D. Ky. 1995), which
previously upheld the $50,000 loan ban. The Wilkinson Court
found two distinct compelling interests: combating the
appearance that a “contributor is lining the candidate’s
pockets” by contributing after the election, and removing “the
appearance that heavily indebted candidates are easy
bedfellows for quid pro quo contributors.” Wilkinson, 876 F.
Supp. at 930-31.
Wilkinson’s first compelling interest–combating the
appearance of a contributor’s lining a candidate’s pocket–is
simply a variation on the post-election contribution issue
raised above. We note that while a state does have the ability
to regulate in order to combat the appearance of corruption,
that appearance must be reasonable. To hold otherwise would
be to give unreasonable perceptions of corruption the
equivalent of a heckler’s veto. The perception that
contributions to campaigns, which in turn repay loans to
candidates, in some way “line the pockets” of candidates is
simply not reasonable, and should not be used as a basis for
regulation.
38 Anderson, et al. v. Spear, et al. No. 02-5529
Wilkinson’s second compelling interest–removing the
appearance that heavily indebted candidates are easy
bedfellows for quid pro quo corruption–is once again
addressed by the contribution limits. If a $1000 contribution
has been found by the Kentucky legislature to be sufficiently
low to avoid the appearance or fact of corruption, then a
$1000 contribution to a campaign that is indebted to the
candidate should also be found to be non-corrupting. While
the candidate may have a greater vested interest in assuring
that an unsecured loan from his personal coffers gets repaid,
the application of Kentucky’s contribution limits means that
no individual donor can give enough to be considered
corrupting or “apparently” corrupting.
Finally, restrictions on loans are particularly onerous
because they limit when a party can speak (or how much he
can say at a given time). The exigencies of a campaign may
require that a candidate spend more early to raise name
recognition, or to address an issue of public concern prior to
contributions arriving. Indeed, a candidate may need to speak
early in order to establish her position and garner
contributions. The $50,000 ceiling on loans, while not
insubstantial, does significantly impinge upon a candidate’s
ability to deliver and to time his or her message. We must
therefore reverse the district court’s judgment concerning the
constitutionality of campaign loan limits.
IX.
WHETHER KENTUCKY’S PROHIBITION OF CONTRIBUTIONS
DURING THE FINAL 28 DAYS BEFORE THE REGULAR
ELECTIO N (KRS § § 121.150(24) & 121A.030(5)) IS
CONSTITUTIONAL AS APPLIED
Pursuant to KRS §§ 121.150(24) & 121A.030(5), a
candidate is prohibited from receiving contributions in the
final 28 days preceding an election, whether the candidate is
participating in the public finance scheme or not. Mr.

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No. 02-5529 Anderson, et al. v. Spear, et al. 39
Anderson challenges the applicability of this provision to
write-in candidates.
The district court and Appellees assert that this issue is
controlled by Gable v. Patton, 142 F.3d 940 (6th Cir. 1998).
In Gable, this court examined whether non-participating
candidates could be subjected to the 28-day restriction. While
the Gable court struck down the restrictions on internal
contributions (self-financing) during this time period, the
court nonetheless upheld the restriction on external
contributions during the final 28 days, even as applied to
candidates who do not participate in the public finance
scheme. Id. at 951. First, the court recognized that the 28-
day requirement is an important part of Kentucky’s campaign
finance scheme. Id. at 950. The court relied upon
Kentucky’s statements that the 28-day restriction is necessary
in order to ensure that all contributions are made before the
final pre-election reporting date, so that “if a non-participating
slate has exceeded the $1.8 million threshold, the Registry
can detect it in time to activate the Trigger.” Id. at 949-50.
Under the Kentucky campaign finance law, contributions to
a participating candidate's campaign are capped at $600,000
(which, with matching public funds equals $1.8 million). The
lifting of this contribution cap is "triggered" by a
non-participating candidate's receiving an excess of $1.8
million in contributions. Id. at 947. Kentucky argued in
Gable that the 28-day window is necessary for the effective
operation of the trigger; the trigger provision is an incentive
for candidates to participate in the public financing scheme;
and the purpose of the public financing scheme is to prevent
actual and apparent corruption. Therefore, the State
contended application of the 28-day window to
non-participating candidates is justified by Kentucky's interest
in preventing corruption. This court agreed. Id. at 951.
Here, Anderson challenges the application of the 28-day
window to write-in candidates. He attempts to distinguish
Gable because write-in candidates are ineligible to participate
in the funding scheme, and therefore the 28-day window
40 Anderson, et al. v. Spear, et al. No. 02-5529
cannot advance the State’s purpose in inducing participation
in the public funding program. The district court found this
attempt to distinguish the holding in Gable to be a
“distinction without a difference.” But the district court
paints with too broad a brush. The Gable court found that the
28-day window was permissible as applied to non-
participating candidates because it advanced Kentucky’s
interest in combating corruption. Gable, 142 F.3d at 951.
The Gable court did not specifically address those candidates
who are non-participating because they are ineligible for
funding under the act–that is, write-in candidates. While the
opinion itself may appear at first blush to be broad enough to
encompass both voluntary and involuntary non-participants,
Gable’s reasoning supports the application of the 28-day
window only to voluntary non-participants.
Under the ratio decidendi of Gable, the 28-day window
contributes to Kentucky’s scheme to combat corruption, but
only insofar as it supports the trigger, which in turn channels
individuals into the corruption-reducing public finance
scheme. Under KRS § 121A, however, write-in candidates
are not eligible to participate in that scheme, and therefore
cannot be channeled into the public finance system.
Therefore applying the 28-day window to write-in candidates
simply cannot be intended to combat corruption by
channeling write-in candidates into the public finance
scheme.
The only remaining question then is whether exempting
write-in candidates from the 28-day requirement would
impair the incentives for other candidates to participate in the
public finance scheme, and thereby undermine the Kentucky
statutory framework designed to combat corruption. The
public finance program caps contributions to a candidate's
campaign at $600,000, and provides matching funds for those
dollars on a two-for-one basis. The contribution cap will be
lifted at any time (until the final report date which is 28 days
before the election) that the non-participating candidate
collects more than $1.8 million. If the 28-day window were

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No. 02-5529 Anderson, et al. v. Spear, et al. 41
not applicable to write-in candidates, a candidate eligible for
public funding would have an incentive not to participate in
the public finance program only if she had reason to believe
that a write-in candidate would fail to collect more than $1.8
million before the 28-day window closed, but would
substantially outstrip her in contributions in the final 28 days.
This is a highly unlikely scenario at best. To the extent that
a write-in candidate could raise such last-minute money, those
funds would most likely be internal contributions—that is,
contributions made by the candidate himself—and this court's
decision in Gable clarified that internal contributions are not
subject to the 28-day window. Accordingly, we see no
reasonable likelihood that exempting write-in candidates
would have a negative impact on candidate participation in
the program. The 28-day window, as applied to write-in
candidates, therefore does not serve the government’s
purported purpose in combating corruption.
But the 28-day window does unnecessarily abridge
associational freedom. As the Supreme Court has noted in
McIntyre v. Ohio Election Com’n, the fact that speech occurs
during the heat of an election “only strengthens the protection
afforded” under the First Amendment. McIntyre v. Ohio
Election Comm’n, 514 U.S. 334, 347 (1995). Because write-
in candidates are less likely to have substantial name
recognition or large bases of support, restricting their ability
to receive contributions during the vital 28 days preceding an
election constitutes a substantial burden on the associational
rights of both the candidate and her would-be supporters. The
district court therefore erred in holding that the application of
the 28-day window to write-in candidates is constitutional.
42 Anderson, et al. v. Spear, et al. No. 02-5529
X.
WHETHER KENTUCKY’S PUBLIC FINANCE OPTION (KRS
121A) DOES NOT PROVIDE BENEFITS ON A DISCRIMINATORY
BASIS IN VIOLATION OF THE CONSTITUTION
Under the provisions of KRS 121A, a write-in candidate is
not entitled to matching funds. Anderson challenges this
provision as a violation of the Equal Protection Clause. As
the district court noted below, Equal Protection challenges to
public funding schemes are not unique, as demonstrated by
the fact that the Buckley Court entertained an Equal Protection
challenge to access to the federal public finance system.
The language in Buckley concerning the inability of a minor
candidate to succeed in challenging a public funding scheme
on Equal Protection grounds is sweeping, and suggests a low
probability of success for such a claim. For example, the
Buckley Court found that “Congress’ interest in not funding
hopeless candidacies with large sums of public money . . .
necessarily justifies the withholding of public assistance from
candidates without significant public support.” Buckley, 424
U.S. at 96. The Court then found that eligibility requirements
also served the public interest “against providing artificial
incentives to ‘splintered parties and unrestrained
factionalism.’” Id. (citation omitted).
The Buckley Court concluded that Equal Protection claims
seeking access to public financing are at base claims of the
“denial of the enhancement of opportunity to communicate
with the electorate that the formulae afford eligible
candidates.” Id. at 95. However, because the Court found
that ineligible candidates are not subject to expenditure
limitations applied to those in the public finance system, the
Court found that those denied access were not “unfairly or
unnecessarily burdened.” Id. at 95-96.
In applying Buckley to Kentucky’s categorical exclusion of
write-in candidates from public-funding eligibility, the district

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No. 02-5529 Anderson, et al. v. Spear, et al. 43
court was “not unmindful that the instant action presents a
significant twist on the Buckley equal protection analysis, a
distinction that may, indeed, be said to inch the
Commonwealth’s scheme in the direction of invidious
discrimination.” Specifically, because of the operation of the
“trigger” (which releases participants from spending caps
once non-participating candidates have raised $1.8 million),
participants in the public financing scheme are not necessarily
burdened by an expenditure cap any more than are those
candidates who are ineligible to participate in the program.
Accordingly, Buckley’s rationale that ineligible candidates are
not unfairly burdened because they are not subject to the
additional expenditure restrictions concomitant with the
public finance program is inapplicable. The district court
nonetheless and without discussion found that the difference
was not significant enough to require a different result from
that which occurred in Buckley, and therefore upheld the
program.
While this is a close question given that under Kentucky’s
scheme, write-in candidates are given all the burdens and
participating candidates all the benefits, we conclude that the
district court did not err in finding that the program can
survive on Equal Protection grounds post-Buckley.
Specifically, Kentucky’s interest in maintaining and
managing scarce resources and, as Buckley put it, in “not
funding hopeless candidacies with . . . public money,” is a
significant government interest that justifies access
requirements for the fund. See Buckley, 424 U.S. at 96.
Accordingly, while Buckley is certainly distinguishable
insofar as the program here does not balance the burdens
among participants and non-participants, the government
interest in maintaining scarce resources allows it to treat
differently situated candidates differently without running
afoul of the Fourteenth Amendment’s Equal Protection
clause. We therefore affirm the decision of the district court
on this question.
44 Anderson, et al. v. Spear, et al. No. 02-5529
XI.
WHETHER KENTUCKY’S TRIGGER PROVISIONS ARE
CONSTITUTIONAL AS APPLIED
As previously described, Kentucky’s trigger provision lifts
the contribution cap for candidates participating in the public
finance system, and eliminates the 28-day window restricting
contributions for all candidates. KRS § 121A.030(5)(a).
Anderson challenges the trigger as excessively coercive.
The Gable Court found that the trigger is not excessively
coercive, and this panel is bound by that decision. See Gable,
142 F.3d at 949. Anderson also challenges the trigger as
applied, suggesting that it is particularly onerous to write-in
candidates who are not permitted to participate in the public
finance system. Because this argument is essentially a
recasting of the Equal Protection claim made in question X,
it must fail for the same reason. We therefore affirm the
judgment of the district court upholding the constitutionality
of the trigger provision as applied.
XII.
For the foregoing reasons, the decision of the district court
is REVERSED as to those claims addressed by this court in
sections III-IX, and AFFIRMED as to those claims addressed
in sections X-XI. The case is remanded for further
proceedings consistent with this order.

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