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Thursday, May 07, 2015

http://www.kentucky.com/2015/05/05/3837019_kentucky-prohibits-electioneering.html?rh=1

http://bluegrasspolitics.bloginky.com/

I'm unclear what authority kentucky had to issue the regulation. a statute would be constitutional, at least federally, but here's there's no statute. from a policy point of view, i'm fine with the limit; burson v freeman was somewhat convincing.

Burson is used as the example of the exception that proves the rule, the rare case where a regulation survives strict scrutiny.  I think what was really going on in that case was not a state interest at all, but a conflict between the rights of those trying to speak to voters,and the right of voters to cast their ballots without intimidation.

In Burson, there was tension between a statute and the First Amendment; tension between a state legislature and a federal court. Principle of comity and federalism weighed in favor of the legislature.

But here and now in Kentucky, it is unclear to me that the legislature has empowered this regulation, and I'm not sure that strict scrutiny can be overcome. Of course, to some strict scrutiny is only a guideline,not to interfere with the personal preferences of the justices or judges.

It would make for an interesting case, if someone were to challenge the regulation. I am aware that I may not have all the facts. I'm just raising the issue.  

Indiana used to have a 50 foot electioneering rule, which was routinely ignored, so they solved that problem by repealing it. I would have encountered these issues if I'd remembered to go vote on Tuesday.

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