Can Kansas ban a campaign yard sign on private property near a polling place on election day?

Plain-English summary

Atchison County's attorney asked whether K.S.A. 25-2430, which bans electioneering, including displaying campaign posters, within 250 feet of a polling place entrance on election day, could constitutionally be enforced against someone displaying a sign on their own private property inside that buffer zone. The concern was that Kansas's electioneering law, unlike some narrower state laws, does not exempt private property from the buffer, meaning a homeowner near a polling place could theoretically be barred from a yard sign supporting a candidate.

The Attorney General concluded the law is facially constitutional even as applied to private property, relying heavily on the U.S. Supreme Court's 1992 decision in Burson v. Freeman, which upheld a similar Tennessee buffer zone against a First Amendment challenge despite applying strict scrutiny. Burson found that states have an "obviously" compelling interest in protecting election integrity and voters' freedom to choose, an interest rooted in more than a century of American election reform that consistently used buffer zones once states adopted the secret ballot. The opinion reasoned that a state's interest in preventing intimidation and fraud near the polls does not depend on whether the property crossing that buffer happens to be publicly or privately owned, especially since polling places themselves are often located on private property like churches. It also leaned on the Supreme Court's 2018 Mansky decision, which held that passive political apparel worn to the polls could be restricted because voting is "a weighty civic act" and "a time for choosing, not campaigning," reasoning that applies equally to a passive yard sign. Because Burson allows a buffer zone that is merely reasonable, not perfectly tailored, the opinion concluded Kansas's 250-foot zone would likely survive a facial challenge even when applied to private property.

What this means for you

County election officers and county or district attorneys enforcing K.S.A. 25-2430: the opinion supports treating the 250-foot buffer as applying equally to private and public property within that radius of a polling place, meaning enforcement against a private-property yard sign inside the zone is defensible under current First Amendment case law.

Homeowners and property owners near polling places: the opinion signals that Kansas law likely allows enforcement of the electioneering ban against a campaign sign on your own property if it sits within 250 feet of a polling place entrance on election day, even though the property is privately owned.

Campaigns and candidates planning election-day signage: the opinion is a reminder to check the 250-foot buffer around every polling location, since the analysis here suggests private-property signage inside that zone is not a safe harbor from the electioneering ban.

Common questions

Does it matter that a yard sign is passive and doesn't confront voters directly?
Not much, according to the opinion, which points to Mansky's holding that voting is a uniquely weighty civic act deserving protection from partisan distraction, a rationale it read as covering passive displays like signs as much as more disruptive electioneering.

Has any court actually ruled on whether Kansas's buffer zone can be applied to private property?
No. The opinion notes that a federal district court case, Clark v. Schmidt, dismissed a private-property challenge for lack of standing without reaching the merits, so this remains an open question the Attorney General is addressing based on analogous precedent rather than a controlling Kansas ruling.

Could a much larger buffer zone, like 500 feet, still be constitutional?
The opinion does not decide that question, since it focuses on Kansas's existing 250-foot zone, but it notes courts have generally been reluctant to second-guess a legislature's chosen buffer size as long as it falls within the range other states and courts have found reasonable.

Background and statutory framework

K.S.A. 25-2430(a)(1)(A) defines "electioneering" to include knowingly attempting to persuade voters by wearing, exhibiting, or distributing materials that clearly identify a candidate or a ballot question's supporters or opponents, within a polling place or within 250 feet of its entrance on election day or during advance in-person voting; it is a class C misdemeanor under K.S.A. 25-2430(d), prosecutable by the Attorney General, Secretary of State, or the appropriate district or county attorney under K.S.A. 25-2435. Kansas has had some form of an electioneering buffer zone since shortly after statehood, originally 100 feet under an 1897 law, extended to the current 250 feet in 1965.

The constitutional backbone of the opinion is Burson v. Freeman, in which a fractured Supreme Court upheld Tennessee's 100-foot electioneering buffer against a facial First Amendment challenge, applying strict scrutiny but finding the zone "necessary" given the compelling interests in preventing voter intimidation and election fraud, informed by a "widespread and time-tested consensus" among states adopting similar restrictions alongside the secret ballot in the late nineteenth century. The Tenth Circuit's more recent decision in Frank v. Lee upheld Wyoming's 300-foot buffer on similar reasoning, while a federal district court in Clark v. Schmidt upheld Kansas's own 250-foot zone against a tailoring challenge but did not reach the private-property question because the plaintiff lacked standing. The opinion reasoned that Burson's rationale, protecting the "act of voting itself" from intimidation and fraud, applies with equal force whether the buffer-zone property is public or private, particularly since polling places themselves commonly sit on private property like churches.

Citations and references

Statutes:
- K.S.A. 21-6602; 21-6611
- K.S.A. 25-1122(g); 25-1123(a)
- K.S.A. 25-2430 (incl. (a)(1)(A), (a)(2), (d)); 25-2435

Cases:
- Burson v. Freeman, 504 U.S. 191 (1992)
- Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018)
- Frank v. Lee, 84 F.4th 1119 (10th Cir.)
- Clark v. Schmidt, 493 F. Supp. 3d 1018 (D. Kan. 2020)

Source

• Landing page: https://www.ag.ks.gov/reports-resources/ag-opinions
• Original PDF: https://www.ag.ks.gov/home/showpublisheddocument/10512/638460984381100000

Original opinion text

March 4, 2024

ATTORNEY GENERAL OPINION NO. 2024-3

Mrs. Sherri L. Becker
Atchison County Attorney
P.O. Box 75
Atchison, KS 66002

Re: Elections—Election Crimes—Electioneering—Prosecution of Election
Crimes

         Crimes and Punishments—Sentencing—Classification of
         Misdemeanors and Terms of Confinement—Fines

Synopsis: County election officers may constitutionally prohibit electioneering on
private property within 250 feet of a polling place on election day.
Cited herein: K.S.A. 21-6602; 21-6611; 25-2430; 25-2435

                        *             *            *

As Atchison County Attorney, you ask for our opinion about the constitutionality of
K.S.A. 25-2430, which prohibits electioneering within 250 feet of the entrance to a
polling place. More precisely, you want to know whether the statute violates the
Free Speech Clause of the First Amendment by prohibiting the display of a poster
advocating the election of a candidate on private property within the buffer zone.
We conclude that an election-day buffer zone that applies to both public and private
property is facially constitutional.

All fifty States and the District of Columbia have laws regulating speech in and
around polling places.1 In Kansas, electioneering is defined, in relevant part, as:

   Knowingly attempting to persuade or influence eligible voters to vote for
   or against a particular candidate, party or question submitted, including
   wearing, exhibiting or distributing labels, signs, posters, stickers or
   other materials that clearly identify a candidate in the election or clearly
   indicate support or opposition to a question submitted election within
   any polling place on election day or advance voting site during the time
   period allowed by law for casting a ballot by advance voting or within a
   radius of 250 feet from the entrance thereof . . . .2

Electioneering is a class C misdemeanor, which carries a maximum punishment of
thirty days' confinement in county jail and a fine of $500.3 Kansas election crimes,
including K.S.A. 25-2430, may be prosecuted by the Attorney General, Secretary of
State, or appropriate District or County Attorney.4

To answer your question, we must survey a number of decisions.

United States Supreme Court

The United States Supreme Court directly addressed the constitutionality of
polling-place buffer zones in Burson v. Freeman.5 At issue there was a Tennessee
statute prohibiting electioneering (including the display of campaign posters) within
100 feet of the entrance to a polling place on election day.6 The law presented "a
particularly difficult reconciliation: the accommodation of the right to engage in
political discourse with the right to vote, a right at the heart of our democracy."7

The Court upheld the law.8 In a plurality opinion, the Court first said that the law
regulated protected political speech in "quintessential public forums," and was not
content neutral because it prohibited only political speech.9 As a result, Tennessee

1 Kansas Legislative Research Department, Elections and Ethics Publications, Electioneering

Distances Chart (updated Oct. 28, 2022), available at https://perma.cc/3JUF-SPYM (cataloguing
distances).
2 K.S.A. 25-2430(a)(1)(A). Electioneering does "not include bumper stickers affixed to a motor vehicle

that is used to transport voters to a polling place or to an advance voting site for the purpose of
voting." Id. at (a)(2).
3 Id. at (d); K.S.A. 2022 Supp. 21-6602(a)(3); K.S.A. 2022 Supp. 21-6611(b)(3).
4 K.S.A. 25-2435.
5 504 U.S. 191 (1992).
6 Id. at 193-94 (plurality opinion) (citing Tenn. Code Ann. § 2-7-111(b) (1991 Supp.)).
7 Id. at 198.
8 Id. at 193-211.
9 Id. at 196-97.

had to show that the law was "necessary to serve a compelling state interest and
that it [was] narrowly drawn to achieve that end."10

Despite the stringent standard, Tennessee prevailed. The statute advanced the
"obviously" compelling interests of "preserving the integrity of its election process"
and "protecting the right of its citizens to vote freely for the candidates of their
choice."11 And the law was necessary to fulfill these interests. The plurality reached
this conclusion after it examined the long and fraught history of American election
reform beginning with voting by voice or showing of hands in the colonial period,
thereafter transitioning to the chaotic party-ticket system, and eventually settling
on the Australian (i.e., secret) ballot system in the late nineteenth century.12 Some
of the earliest laws enacting the Australian ballot system included prohibitions on
electioneering within certain distances from polling places.13 The plurality believed
"that this 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."14

On the question of narrow tailoring, the plurality adopted a unique standard.
Because states have "such a compelling interest in securing the right to vote freely
and effectively" without first sustaining some level of damage to its political system,
the plurality said that states need not show that a buffer zone is "perfectly tailored
to deal with voter intimidation and election fraud."15 Instead, a legislature "'should
be permitted to respond to potential deficiencies in the electoral process with
foresight rather than reactively, provided that the response is reasonable and does
not significantly impinge on constitutionally protected rights.'"16

Applying this new standard, the plurality characterized the 100-foot buffer zone as
a "minor geographic limitation" narrowly tailored to fulfill the state's compelling
interests.17 Notably, it disagreed with a lower court's belief that the buffer zone
would be constitutional only if it were reduced to twenty-five feet, stating this "is a
difference only in degree, not a less restrictive alternative in kind."18 At the same
time, it observed that "[a]t some measurable distance from the polls, of course,
governmental regulation of vote solicitation could effectively become an
impermissible burden."19

10 Id. at 198 (internal quotations omitted).
11 Id. at 198-99.
12 Id. at 200-06.
13 Id. at 203-04 (discussing Louisville's 50-foot buffer zone and New York's 100-foot buffer zone).
14 Id. at 206.
15 Id. at 208-09.
16 Id. at 209 (quoting Munro v. Socialist Workers Party, 479 U.S. 189, 195-96 (1986)).
17 Id. at 210.
18 Id.
19 Id.

Justice Scalia concurred in the judgment but disagreed with the level of scrutiny
the plurality applied.20 In his view, Tennessee's restriction on speech was "as
venerable a part of the American tradition as the secret ballot."21 He thus rejected
the plurality's premise that areas outside polling places were traditional public fora
on election day.22 He would have held that the statue was constitutional "because it
is a reasonable, viewpoint-neutral regulation of a nonpublic forum."23

In the end, although Justice Scalia and the plurality employed different rationales,
a majority of the Court voted to uphold Tennessee's law.

Prior to Burson, the Supreme Court had invalidated an Alabama law prohibiting
any electioneering on election day without any geographic limitation.24 The law had
been used to prosecute a newspaper editor who published an editorial urging
readers to vote for a particular form of city government.25 Since the case did not
involve conduct near a polling place, Alabama's interest in regulating conduct "in
and around the polls" was not implicated.26 The Court had no difficulty invalidating
the law, particularly when it failed to serve the dubious state interest of preventing
last-minute misinformation.27

The Court also considered a challenge to Minnesota's electioneering law in
Minnesota Voters Alliance v. Mansky.28 The law in question there prohibited voters
from wearing political apparel inside a polling place on election day.29 Relying
heavily on Burson, the Court emphasized the importance of preventing "fraud, voter
intimidation, confusion, and general disorder" in a location where voters are
exercising "a weighty civic act."30 It held that states could reasonably decide to
prohibit certain apparel based on the message it conveys.31 Nonetheless, the Court
struck down the law because Minnesota could not articulate a sensible distinction
between acceptable and unacceptable apparel due to the expansive meaning of the
term "political" used in the statute.32

20 Id. at 214-16. (Scalia, J., concurring).
21 Id. at 214.
22 Id. at 215-16.
23 Id. at 214.
24 Mills v. Alabama, 384 U.S. 214, 216 (1966).
25 Id. at 215-16.
26 Id. at 218.
27 Id. at 219-21; see also Meyer v. Grant, 486 U.S. 414, 427 (1988) (striking down law prohibiting the

use of paid signature gatherers).
28 138 S. Ct. 1876, 1883 (2018).
29 Id. at 1882 (citing Minn. Stat. § 211B.11(1) (Supp. 2017)).
30 Id. at 1886, 1887.
31 Id. at 1886-87.
32 Id. at 1888-92. By contrast, the Kansas statute provides a more precise standard. A person may

not wear items inside a polling place that "clearly identify a candidate in the election or clearly
indicate support or opposition to a question submitted election." K.S.A. 25-2430(a)(1)(A).

Tenth Circuit Court of Appeals

The Tenth Circuit recently considered a First Amendment challenge to a Wyoming
statute that prohibits electioneering within 300 feet of a polling place on election
day and 100 feet of an absentee polling place for the forty-five days before the
election.33 The challenger claimed, among other things, that the 300-foot buffer zone
was too large and the forty-five-day absentee buffer zone lasted too long.34 He also
alleged that the law was overbroad because it prohibited individuals from
displaying campaign signs on nearby private property.35 The district court struck
down the 300-foot zone, upheld the 100-foot absentee zone, and dismissed the
private property challenge because the plaintiff did not own any private property
within a buffer zone.36

The Tenth Circuit reversed these judgments. It first upheld the size of the election-
day buffer zone.37 In doing so, the court seized upon Burson's observation that a
reduction of size "'is a difference only in degree, not a less restrictive alternative in
kind.'"38 The Court thought that Burson "was hardly concerned with the exact size
of the buffer zone"39 and that its reference to an outer limit did not "fall arbitrarily
between 100 and 300 feet."40

The court next found it was error for the district court to completely disregard the
temporal scope of the 100-foot absentee buffer zone. According to the Court, a
"meaningful" tailoring analysis could not be completed without assessing the
burden on free speech imposed by a forty-five-day prohibition.41 Finally, the Tenth
Circuit construed the private-property challenge as a facial overbreadth claim,
which the challenger had standing to assert.42 Rather than opine on these latter two
issues for the first time, the circuit court returned them to the district court.43

33 Frank v. Lee, 84 F.4th 1119, 1127-28 (citing Wyo. Stat. Ann. § 22-26-113).
34 Id. at 1126-27, 1149.
35 Id.
36 Id. at 1130, 1150.
37 Id. at 1141-46.
38 Id. at 1141-43 (quoting Burson, 504 U.S. at 210).
39 Id. at 1145.
40 Id.
41 Id. at 1148-50. In Kansas, a county election officer must provide for advance in-person voting

during the seven days before an election. K.S.A. 2023 Supp. 25-1122(g). But a county election officer
has the discretion to extend advance in-person voting up to 20 days before an election. K.S.A. 25-
1123(a). While someone might challenge the buffer zone's duration, we limit our analysis to a
hypothetical challenge based on the facts you have provided, which involve only the display of a sign
on election day.
42 Id. at 1150-52.
43 Id. at 1152. The challengers have filed a petition for writ of certiorari, which is currently pending

before the Supreme Court.

District of Kansas

Shortly before the Tenth Circuit issued its decision, the District of Kansas
considered a challenge to K.S.A. 25-2430. In Clark v. Schmidt,44 a group of
individuals and organizations sued the former Attorney General and the Johnson
County Election Commissioner, claiming the electioneering statute violated their
right to free speech.45

The challengers advanced three arguments that are relevant here: (1) the State
could not justify the size of the buffer zone; (2) the statute is not appropriately
tailored; and (3) the statute is unconstitutionally overbroad because it applies to
political speech occurring on private property. Like the Tenth Circuit, the district
court upheld the size of the buffer zone, relying on Burson's explanation that the
size of a zone is "'not a question of 'constitutional dimension.'"46 It also
distinguished two Sixth Circuit cases in which buffer zones were struck down under
unusual circumstances.47

On the petitioners' claim that the law was not sufficiently tailored because it
applied to "'passive, non-disruptive speech'" that could not confuse or intimidate
voters, the district court turned to Mansky's treatment of passive political apparel,
explaining that "a state 'may reasonably take steps to ensure that partisan discord
not follow the voter up to the voting booth, and distract from a sense of shared civic
obligation at the moment it counts the most,'" including by prohibiting "'displays that
do not raise significant concerns in other such situations,'" such as nondisruptive
expression.48 The court thus found the law was appropriately tailored.49

Lastly, the district court held that the one plaintiff who alleged the law was
unconstitutional as applied to private property lacked standing because he had
stated only a "vague desire" to place signs on private property and there was
therefore no credible threat that he would be prosecuted under the statute.50 As a
result, the court did not address whether K.S.A. 25-2430's prohibition on
electioneering may be constitutionally applied to political activity on private
property.51

44 493 F. Supp. 3d 1018 (2020).
45 Id. at 1020-21.
46 Id. at 1031 (quoting Burson, 504 U.S. at 1031).
47 Id. at 1031-32 (citing Anderson v. Spear, 356 F.3d 651, 656 (6th Cir. 2004) (striking down 500-foot

buffer zone); Russell v. Lundergan-Grimes, 784 F.3d 1037, 1045 (6th Cir. 2015) (striking down same
state's amended law that reduced zone to 300 feet)).
48 Id. at 1032 (quoting Mansky, 138 S. Ct. at 1887-88).
49 Id. at 1033.
50 Id. at 1034-35.
51 Id. at 1035.

Analysis

We turn now to the question you raise: May K.S.A. 25-2430 be constitutionally
applied to private property that falls within its 250-foot buffer zone? For the
purpose of this analysis, we assume a hypothetical challenger would claim that the
statute is facially overbroad because it applies to private property within the buffer
zone. To prevail, the challenger would have to show that "a substantial number of
its applications are unconstitutional, judged in relation to the statute's plainly
legitimate sweep."52 Although none of the cases previously discussed reached the
merits of this question, we think Burson controls; and the statute is facially
constitutional.

To begin, Burson's analysis applies. The Supreme Court said that Tennessee's
electioneering law implicated "three central concerns in our First Amendment
jurisprudence: regulation of political speech, regulation of speech in a public forum,
and regulation based on the content of the speech."53 Likewise, K.S.A. 25-2430 is
not content neutral, and it regulates political speech. And while private property is
not a traditional public forum, it is afforded significant constitutional protection in
other contexts.54 As a result, the law must be "'necessary to serve a compelling state
interest and . . . narrowly drawn to achieve that end."55

A court applying this standard would find that K.S.A. 25-2430 is necessary to serve
compelling state interests. It fulfills the "obviously" compelling interests of
"preserving the integrity of its election process" and "protecting the right of its
citizens to vote freely for the candidates of their choice."56 And the law is necessary
to fulfill these objectives. The Supreme Court thoroughly detailed our country's
history of election fraud and voter intimidation,57 to which states have responded
with an "overwhelming consensus" of "common sense" campaign-free zones around
polling places.58 Indeed, Kansas has had an electioneering buffer zone since shortly
after statehood.59 And regardless of whether voters encounter electioneering on
public or private property when approaching polling places, the State's compelling
interests in protecting voters from intimidation and preventing fraud remain
unchanged.

52 United States v. Stevens, 559 U.S. 460, 473 (2010) (quotation omitted).
53 Burson, 504 U.S. at 196.
54 Cf. Florida v. Jardines, 569 U.S. 1, 6 (2013) ("[W]hen it comes to the Fourth Amendment, the home

is first among equals.").
55 Burson, 504 U.S. at 198 (quoting Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45

(1983)).
56 Id. at 198-99.
57 Id. at 200-06.
58 Mansky, 138 S. Ct. at 1886.
59 Our state originally adopted a 100-foot buffer zone. L. 1897, Ch. 129 § 26. In 1965, the legislature

extended it to 250 feet. L. 1965, Ch. 250.

The closer question is whether Burson's tailoring analysis would apply to a private
property challenge.60 Recall that the Court adopted a lesser burden so states could
proactively police their polls. Under Burson, a zone need not be perfectly tailored to
address voter intimidation and election fraud; it must only be reasonable and not
significantly impinge on constitutionally protected rights.61

One might claim that Burson's framework would not extend to political speech on
private property. Yet in other contexts, the Supreme Court has upheld government
regulation of speech on private property.62 And Burson said its tailoring analysis
applies "when the First Amendment right threatens to interfere with the act of
voting itself, i.e., . . . cases such as this one, in which the challenged activity
physically interferes with electors attempting to cast their ballots."63 Like
electioneering on public property, electioneering on private property within the
buffer zone interferes with the act of voting itself. Similarly, Frank observed that
Burson's tailoring analysis is founded in "recognition of the deference due to the
states in our federal system."64 Voter intimidation or election fraud that originate
from private property undermine a state's sovereignty as much as voter
intimidation and fraud originating from public property, so the state's compelling
interests remain the same. Moreover, it is common for polling to occur on private
property such as church buildings or other private facilities. To hold that the First
Amendment exempts private property from buffer zones would allow for
electioneering at polls in these locations. When it comes to electioneering, then, we
believe a court would find that the distinction between public and private property
is immaterial.65

With regard to proper tailoring, we presume a hypothetical challenger displaying a
campaign sign would stress the passive nature of such conduct. As Clark explained,
however, Mansky drew no line between active and passive electioneering.66
"Casting a vote is a weighty civic act, akin to a jury's return of a verdict, or a
representative's vote on a piece of legislation. It is a time for choosing, not
campaigning."67 Given that a state need not perfectly tailor its electioneering buffer

60 See Burson, 504 U.S. at 208 (explaining that the size of the buffer zone is a question of tailoring).
61 Id. at 209.
62 See, e.g., Grayned v. City of Rockford, 408 U.S. 104, 107-08 (1972) (upholding Chicago ordinance

that prohibited individuals on public or private property adjacent to a school from making noise or
diversions that disturbed the peace or good order of a school).
63 504 U.S. at 209 n. 11. The plurality in Burson said that a state would have to produce more proof

in a tailoring analysis in cases where the state seeks to regulate "intangible 'influence,' such as the
ban on election-day editorials struck down in Mills." Id.
64 Frank, 84 F.4th at 1142 (internal quotes omitted); accord Clark, 493 F. Supp. 3d at 1033.
65 In addition, Mansky's heavy reliance on Burson suggests it has a broader application beyond its

particular circumstances. See Mansky, 138 S. Ct. at 1886. And the Tenth Circuit's approval of
Wyoming's 300-foot buffer zone, which necessarily dictates the amount of private property the zone
encompasses, suggests Burson would apply to private property.
66 Clark, 493 F. Supp. 3d at 1032.
67 Mansky, 138 S. Ct. at 1887.

zone, we think that an election-day prohibition on electioneering is reasonable and
does not significantly impinge on the constitutional rights of nearby private
property owners who wish to display a campaign sign.68

                                   Sincerely,

                                   /s/ Kris W. Kobach

                                   Kris W. Kobach
                                   Attorney General

                                   /s/ Kurtis K. Wiard

                                   Kurtis K. Wiard
                                   Assistant Solicitor General

68 Burson, 504 U.S. at 209.