Court rules Kentucky county parties can advocate for constitutional amendments for now

The United States Court of Appeals for the Sixth Circuit has ruled that certain Kentucky election finance laws that prevent political parties in districts from advocating for or against constitutional amendments violate the Constitution.

Parties in Kentucky County can now speak out and advocate for or against Amendment 2, thanks to a temporary injunction issued by a three-judge panel and made public Thursday.

The measure will be put to a vote in November and, if passed, would use taxpayer money to fund nonpublic K-12 and charter schools.

While the amendment’s politics technically fall outside party lines, the state’s top elected Republicans — including legislative leaders and state-level elected officials — all support it, while Democratic Gov. Andy Beshear and Lieutenant Governor Jacqueline Coleman are staunch opponents.

The vote is expected to be the most controversial state race this year, as there are no elections for statewide offices and Kentucky’s six members of Congress are either running unopposed or in districts that are not considered competitive, according to the Cook Political Report.

Allies of public schools and teachers unions have already begun a statewide tour speaking out against the amendment, while the libertarian-leaning Americans For Prosperity (founded by the Koch brothers, two entrepreneurs who were among the party’s most influential megadonors) is leading the charge in support of the amendment.

A political action committee affiliated with Sen. Rand Paul, R-KY, is expected to air a television ad this week supporting the amendment.

The legal battle over whether county parties could influence the amendment began in June when the Republican parties in Hardin and Jessamine counties asked the Kentucky Registry of Election Finance (KREF) for an advisory opinion. The Registry said county parties could not do so because the amendments are not partisan in the same way that candidates are and were not expressly permitted in the latest ordinance.

The Boone County Republican Party later joined other GOP affiliates in suing the Register’s opinion. Republican Attorney General Russell Coleman also filed an amicus curiae brief supporting the parties’ lawsuit.

Initially, U.S. District Judge Gregory Van Tatenhove denied the parties’ motion for a preliminary injunction to enforce the ordinance. Writing an opinion for the Sixth Circuit Court of Appeals, Judge Karen Nelson Moore found that the KREF ordinance burdened the parties’ speech rights under the First Amendment to the U.S. Constitution.

“In the context of First Amendment rights, few are as important as the right to express opinions on election issues and the qualifications of political candidates,” Moore wrote.

Although the Sixth Circuit Court of Appeals has already considered the injunction issue, the merits of the case are still pending in district court, said Register Executive Director John Steffen.

“Because the case has not yet actually been heard on the merits, I expect we will wait and see how the lower courts rule on the merits rather than being overly concerned with issuing an interlocutory injunction. In the meantime, the Registry remains confident that it correctly applied the law as written to the facts presented when it issued its opinion on the underlying question in July,” Steffen wrote.