Lisa Peterson v. James Dean

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 15a0016p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

LISA PETERSON; MARY LYNN BUSH; DIANE ┐

CASHON; GLENDA C. MCNUTT; DANA ZEHNER; │

BRENDA KAY DODSON; PATRICIA LUMPKINS; TYCIA │

L. KESTERSON, │ No. 14-5219

Plaintiffs-Appellants, │

>

│

│

v.

│

│

JAMES DEAN, et al., │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 3:09-cv-00628—Kevin H. Sharp, Chief District Judge.

Argued: October 2, 2014

Decided and Filed: January 28, 2015

Before: SILER, CLAY, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ARGUED: W. Gary Blackburn, THE BLACKBURN FIRM, PLLC, Nashville, Tennessee, for

Appellants. John I. Harris III, SHULMAN, LEROY & BENNETT, P.C., Nashville, Tennessee,

for DeKalb County Appellees. ON BRIEF: W. Gary Blackburn, THE BLACKBURN FIRM,

PLLC, Nashville, Tennessee, for Appellants. John I. Harris III, SHULMAN, LEROY &

BENNETT, P.C., Nashville, Tennessee, for DeKalb County Appellees. Jeffrey M. Ward,

Thomas J. Garland, Jr., MILLIGAN & COLEMAN PLLP, Greeneville, Tennessee, for Hawkins

County Appellees. John D. Schwalb, JOHN D. SCHWALB, PLLC, Franklin, Tennessee, for

Cannon County Appellees. Robert O. Binkley, Jr., Geoffrey A. Lindley, RAINEY, KIZER,

REVIERE & BELL, P.L.C., Jackson, Tennessee, for Weakley County Appellees.

GRIFFIN, J., delivered the opinion of the court in which SILER, J., joined. CLAY, J.

(pp. 20–26), delivered a separate dissenting opinion.

1

No. 14-5219 Peterson, et al. v. Dean, et al. Page 2

_________________

OPINION

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GRIFFIN, Circuit Judge. In this action brought pursuant to 42 U.S.C. § 1983, plaintiffs,

former county administrators of elections from eight counties in Tennessee, allege that following

the 2008 statewide elections and a shift in the controlling political party in the state assembly,

they were ousted from their positions by the defendants, county election commissioners, because

of their actual or perceived political party affiliation, in violation of their First and Fourteenth

Amendment rights of freedom of speech and equal protection. Plaintiffs sued defendants in their

individual and official capacities, seeking monetary damages and declaratory and injunctive

relief.

In a series of rulings, the district court winnowed plaintiffs’ claims down to one: a

Section 1983 claim for declaratory or injunctive relief against defendants in their official

capacities as election commissioners. The parties and the district court agreed that the common

and controlling issue was whether the statutory position of county administrator of elections in

Tennessee is lawfully subject to patronage dismissal under Elrod v. Burns, 427 U.S. 347 (1976),

and Branti v. Finkel, 445 U.S. 507 (1980). The district court answered this question in the

affirmative, examining the inherent duties of county election administrator in the context of the

categorical criteria of McCloud v. Testa, 97 F.3d 1536 (6th Cir. 1996). The court therefore

granted defendants’ motions to dismiss and/or for summary judgment and entered a final

judgment in favor of all defendants. Plaintiffs now appeal. For the reasons that follow, we

affirm.

I.

The eight plaintiffs in this case all served as county election administrators for their

respective counties in Tennessee. The district court accurately described the statutory hierarchy

of state and county election officials created by the Tennessee legislature, of which the county

election administrators are a part:

The State Election Commission is a statutory creation. Codified at Tenn. Code

Ann. § 2-11-101, the State Election Commission presently consists of seven

No. 14-5219 Peterson, et al. v. Dean, et al. Page 3

members, four of whom are to be members of the majority party, three of whom

are to be members of the minority party, and all of whom “shall first be

nominated by a joint senate-house caucus of the members of the party of which

such person is a member.” Tenn. Code Ann. §§ 2-11-103 (a) & (b).[1]

The State Election Commission is required to appoint five election commissioners

for each county in Tennessee, three of whom “shall be members of the majority

party” and two of whom “shall be members of the minority party.” Tenn. Code

Ann. § 2-12-103(a). The five so appointed comprise the county election

commission and these commissioners hold office for two years. Tenn. Code Ann.

§ 2-12-101.

Each county election commission, in turn, is required to “appoint an administrator

of elections, who shall be the chief administrative officer of the commission and

shall be responsible for the daily operations of the commission office and the

execution of all elections.” Tenn. Code Ann. § 2-12-116(a)(1). The appointed

administrator is required to have a high school diploma or GED, and “[i]n

evaluating a prospective appointee, the commission shall consider the knowledge

and experience of such prospective appointee in the following areas:

administrative, managerial, instructional, communication, budgetarial,

purchasing, promotional, legal and general office skills and other related skills

necessary to fulfill the statutory requirements of administrator.” Id.

The job duties of the administrator are also prescribed by statute. Specifically,

Tenn. Code Ann. § 2-12-201[a] provides that his or her “duties include, but are

not limited to, the following”:

(1) Employment of all office personnel . . .

(2) Preparation of the annual operating budget and presentation of such budget to

the election commission for approval;

(3) Upon approval by the county election commission, presentation of the annual

budget to the county commission or other legislative body for funding;

(4) Requisition and purchase of any supplies necessary for the operation of the

election commission office and the conduct of all elections;

(5) Maintenance of voter registration files, campaign disclosure records, and any

other records required by this title;

(6) Conducting of instruction class for poll workers or designation of another

qualified person to conduct such class;

(7) Preparation of all notices for publication required by this title;

(8) Preparation and maintenance of all fiscal records necessary for the daily

operation of the election commission office and all elections. This may include

any requests for funding or changes in funding, if necessary, after adoption of the

current fiscal budget;

1

At the time the instant action was commenced in July 2009, the Tennessee State Election Commission had

five members, three of whom were from the majority party, and two of whom were from the minority party. The

number of members was increased to seven, effective April 26, 2011. See 2011 Tenn. Pub. Acts, c. 125, §§ 1-2.

No. 14-5219 Peterson, et al. v. Dean, et al. Page 4

(9) Compilation, maintenance and dissemination of information to the public, the

candidates, the voters, the press and all inquiring parties in regard to all aspects of

the electoral process on all governmental levels;

(10) Promotion of the electoral process through supplemental registrations, public

functions, press releases and media advertising whenever possible;

(11) Attendance at any required seminar and other educational seminars, as

funding permits, to gain knowledge beneficial to the administration of the election

commission office or to the electoral process;

(12) Having knowledge of all current laws pertaining to the election process and

any changes mandated by the general assembly, and apprising the election

commission, office staff, candidates, the press and the public in general of this

information;

(13) Assistance in the planning and implementation of any plan of apportionment

or reapportionment of any governmental entity involved in the electoral process;

(14) The county election commissioners may not employ themselves or any of

their spouses, parents, siblings, in-laws or children as administrator;

(15) Preparation of a plan for placing precinct voting locations and presentation

of such plan to the election commission for approval;

(16) Preparation of a plan for early voting sites and presentation of such plan to

the election commission for approval; and

(17) Upon request, assist the:

(A) City councils, as appropriate, for cities located in the county;

(B) County legislative body;

(C) Local board of education; and

(D) Members of the general assembly representing the county, concerning

redistricting in 2012, and thereafter every two-year period following

each decennial census taken by the United States census bureau.

(Emphasis added.)

As these statutes reflect, in Tennessee the state legislature has established a system

wherein the majority party has control of the state and county election commissions.

Membership on these commissions is based explicitly on political party affiliation. The county

commissions in turn appoint a county election administrator to assist in running the elections.

In the 2008 election, the majority and minority parties of the Tennessee General

Assembly flipped, with the Republican Party taking control of each house. This change of party

control in the state government ushered in changes in the offices of Secretary of State, the state

election coordinator, the state election commission, and all of the local election commissions

serving in each county. Following the 2008 election, defendants—county election

commissioners who represented the majority Republican Party—terminated plaintiffs’

No. 14-5219 Peterson, et al. v. Dean, et al. Page 5

employment as election administrators, allegedly appointing in their stead members or supporters

of the Republican Party.

In July 2009, eight former county election administrators filed this lawsuit against

defendants, asserting that the political partisanship mandated by statute for the state and county

election commissions could not be applied constitutionally to any decisions to retain, reappoint,

or appoint the administrators. Plaintiffs alleged, in pertinent part, that they were county

employees and that “[a]dministrators of elections are ministerial officers who make no policy,

enjoy limited discretionary authority, exercise no ultimate budgetary authority, and are expected

to perform all duties of the office with political impartiality.” Plaintiffs stated that in December

2008, after the election, “the House Republican Caucus Whip and member of the Tennessee

Republican Party State Executive Committee, published a memo to elected Republican members

of the Tennessee legislature setting forth a requirement that an individual be a ‘bona fide

Republican’ for appointment to positions such as election commissions.” Plaintiffs further

alleged that prior to each defendant’s appointment as a county election commissioner,

“[d]efendants met with members and officials of the state and county Republican Party and

certain elected Republican members of the state legislature and committed, as a condition of

their appointment, to terminate [p]laintiffs’ employment and appoint a member or supporter of

the Republican Party to replace [p]laintiffs.” Plaintiffs averred that “prior to public meetings of

each county election commission, [d]efendants in each county met in private and communicated,

deliberated, and agreed to vote to terminate [p]laintiffs’ employment,” and contended that they

were terminated solely because of their actual or perceived political party affiliation and replaced

with a member or supporter of the Republican Party. According to plaintiffs, but for their

political affiliation, they would still be employed as administrators of elections, as they received

no criticism regarding their job performance.

The original complaint asserted, inter alia, violations of plaintiffs’ rights to freedom of

speech and equal protection under the First and Fourteenth Amendments of the United States

Constitution and 42 U.S.C. § 1983. Plaintiffs sought monetary damages and declaratory and

injunctive relief against defendants in their official and individual capacities.

No. 14-5219 Peterson, et al. v. Dean, et al. Page 6

The case progressed and, as the result of the issuance of several orders granting in part

defendants’ motions to dismiss, the district court narrowed plaintiffs’ action down to the § 1983

claim for declaratory and injunctive relief against all defendants in their official capacities. The

court dismissed the claimed violations of state law and found that defendants, as state officials,

were not liable for monetary damages in either their official or individual capacities. The district

court also dismissed plaintiffs’ claims for injunctive and declaratory relief against defendants in

their individual capacities.

Subsequently, following discovery, defendants filed additional motions for summary

judgment and/or motions to dismiss. Acknowledging that a common question in each of these

motions was whether the position of administrator of elections is a patronage position, and that

resolution of this issue could be outcome determinative as to many of the motions and serve as a

basis for an interlocutory appeal, the district court held a status conference with the parties at

their request and indicated that in an effort to streamline matters, it would issue an opinion on the

patronage question. On February 21, 2013, the court issued its decision on this point, holding

that plaintiffs’ positions were subject to patronage dismissal, thereby foreclosing plaintiffs’

§ 1983 constitutional claims.

The parties jointly moved the district court to alter or amend its order for the purpose of

permitting an interlocutory appeal. The district court granted the motion to certify its order for

immediate appeal, but this court denied the ensuing interlocutory appeal by the parties. The

parties, having agreed that the political patronage issue as previously determined by the district

court was dispositive of the case, then filed a joint motion for entry of final judgment.

Accordingly, on February 20, 2014, the district court entered a final order and judgment granting

defendants’ motions to dismiss or for summary judgment for the reasons set forth in its

patronage-issue opinion, denying as moot the motions to the extent that they raised alternative

grounds for dismissal, and dismissing the case with prejudice. Plaintiffs now timely appeal.

No. 14-5219 Peterson, et al. v. Dean, et al. Page 7

II.

A.

In order to prevail on their § 1983 claims, plaintiffs must prove that defendants deprived

them of their rights guaranteed by the Constitution while acting under color of state law. Lane v.

City of LaFollette, Tenn., 490 F.3d 410, 418 (6th Cir. 2007). It is clear that defendants acted

under the color of state law in terminating plaintiffs; thus, the key question is whether plaintiffs’

discharge involved the deprivation of a First Amendment right.

We review the district court’s grant of summary judgment de novo. Seeger v. Cincinnati

Bell Tel. Co., LLC, 681 F.3d 274, 281 (6th Cir. 2012). “Whether political affiliation is an

appropriate consideration for a government position is a question of law.” Sowards v. Loudon

Cnty., 203 F.3d 426, 435 (6th Cir. 2000). “[I]f, as a matter of law, the inherent duties of [a

government employee] are political in character, patronage considerations may justifiably

influence or control the [employment action], and any claim initiated under 42 U.S.C. § 1983 by

a former [employee] for alleged patronage discharge is nonviable as a matter of law.” Mumford

v. Basinski, 105 F.3d 264, 271–72 (6th Cir. 1997). “[T]he issue on summary judgment is

whether [d]efendants have established that no genuine factual issue exists as to whether political

affiliation may appropriately be considered with respect to the position in question.” Feeney v.

Shipley, 164 F.3d 311, 314 (6th Cir. 1999) (internal quotation marks omitted).

It is well established that patronage dismissals of public employees based upon political

beliefs or affiliations are generally prohibited as violative of the employees’ First Amendment

freedoms of political belief and association. Elrod, 427 U.S. at 356–57.2 However, in limited

circumstances, these constitutional rights bow to the government’s interest in maintaining

efficiency and effectiveness, or the need for political loyalty, and party affiliation may be a

legitimate requirement for government employment. Id. at 366–68. “Justice Brennan wrote that

‘[l]imiting patronage dismissals to policymaking positions is sufficient to achieve’ the valid

governmental objective of preventing holdover employees from undermining the ability of a new

2

This principle extends not only to the termination of an employee for his political beliefs or affiliation, but

also to the failure to reappoint an employee upon the expiration of a term of office, and to other employment actions

such as transfers, promotions, demotions, recalls, or appointments. Rutan v. Republican Party, 497 U.S. 62, 72

(1990); Branti, 445 U.S. at 512 n.6; Newman v. Voinovich, 986 F.2d 159, 162 (6th Cir. 1993).

No. 14-5219 Peterson, et al. v. Dean, et al. Page 8

administration to implement its policies.” Hall v. Tollett, 128 F.3d 418, 422 (6th Cir. 1997)

(quoting Elrod, 427 U.S. at 367). By contrast, “[n]onpolicymaking individuals usually have only

limited responsibility and are therefore not in a position to thwart the goals of the in-party.”

Elrod, 427 U.S. at 367.

This dichotomy is not easy to discern. “While nonpolicymaking individuals usually have

limited responsibility, that is not to say that one with a number of responsibilities is necessarily

in a policymaking position.” Id. at 367. Moreover, “[i]t is equally clear that party affiliation is

not necessarily relevant to every policymaking or confidential position.” Branti, 445 U.S. at

518. “In determining whether an employee occupies a policymaking position, consideration

would also be given to whether the employee acts as an adviser or formulates plans for the

implementation of broad goals.” Elrod, 427 U.S. at 368. In short, “[t]he nature of the

responsibilities is critical” and requires a case-by-case analysis to determine whether the so-

called Elrod–Branti exception applies. Id. at 367; see also Sowards, 203 F.3d at 439 n.4

(“Because the duties of a jailer may vary from state to state, it is important to examine the

applicable state and local law when deciding whether political considerations may be used in

employment decisions concerning a jailer.”).

“[T]he ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a

particular position; rather, the question is whether the hiring authority can demonstrate that party

affiliation is an appropriate requirement for the effective performance of the public office

involved.” Branti, 445 U.S. at 518. This test requires the courts to look beyond the mere job

title and examine the inherent duties of the position at issue and the duties that the new position-

holder will perform. Lane, 490 F.3d at 419; Baker v. Hadley, 167 F.3d 1014, 1018 (6th Cir.

1999).

Our court has identified four categories of positions that fall with reasonable certainty

under the so-called “Elrod–Branti exception” to the prohibition on patronage dismissal:

Category One: positions specifically named in relevant federal, state, county, or

municipal law to which discretionary authority with respect to the enforcement of

that law or the carrying out of some other policy of political concern is granted;

Category Two: positions to which a significant portion of the total discretionary

authority available to category one position-holders has been delegated; or

No. 14-5219 Peterson, et al. v. Dean, et al. Page 9

positions not named in law, possessing by virtue of the jurisdiction’s pattern or

practice the same quantum or type of discretionary authority commonly held by

category one positions in other jurisdictions;

Category Three: confidential advisors who spend a significant portion of their

time on the job advising category one or category two position-holders on how to

exercise their statutory or delegated policymaking authority, or other confidential

employees who control the lines of communications to category one positions,

category two positions or confidential advisors;

Category Four: positions that are part of a group of positions filled by balancing

out political party representation, or that are filled by balancing out selections

made by different governmental agents or bodies.

If a particular position falls into one of these categories, then political affiliation is

an appropriate consideration for that position and a public employee may be

dismissed without violating the First Amendment. A government position is not

required, however, to fall neatly within one of the categories to be entitled to the

Elrod–Branti exception.

Sowards, 203 F.3d at 435–36 (quoting McCloud, 97 F.3d at 1557) (internal citation omitted).3

The Elrod–Branti exception “is to be construed broadly, so as presumptively to

encompass positions placed by the legislature outside of the ‘merit’ civil service.” McCloud,

97 F.3d at 1542. Consequently, “if there is any ambiguity about whether a particular position

falls into any of [the four categories] (and so also within the Branti exception), it is to be

construed in favor of the governmental defendants when the position at issue is unclassified or

non-merit under state law. . . .” Id. at 1557.

“‘Government officials may . . . terminate at-will relationships . . . without cause; but it

does not follow that this discretion can be exercised to impose conditions on expressing, or not

expressing, specific political views.’” Lane, 490 F.3d at 419 (quoting O’Hare Truck Serv., Inc.

v. City of Northlake, 518 U.S. 712, 725–26 (1996)); see also Perry v. Sindermann, 408 U.S. 593,

597 (1972) (“[T]his Court has made clear that even though a person has no ‘right’ to a valuable

governmental benefit and even though the government may deny him the benefit for any number

3

In numerous cases preceding the McCloud framework, our court held that certain positions were subject to

patronage dismissal. See, e.g., Blair v. Meade, 76 F.3d 97 (6th Cir. 1996) (chief financial officer and office manager

for elected county judge executive); Rice v. Ohio Dep’t of Transp., 14 F.3d 1133 (6th Cir. 1994) (district

administrative assistant for state department of transportation); Faughender v. City of North Olmsted, 927 F.2d 909

(6th Cir. 1991) (mayor’s secretary); Monks v. Marlinga, 923 F.2d 423 (6th Cir. 1991) (assistant prosecuting

attorney); Williams v. City of River Rouge, 909 F.2d 151 (6th Cir. 1990) (city attorney); and Balogh v. Charron,

855 F.2d 356 (6th Cir. 1988) (court bailiff).

No. 14-5219 Peterson, et al. v. Dean, et al. Page 10

of reasons, . . . [i]t may not deny a benefit to a person on a basis that infringes his constitutionally

protected interests—especially, his interest in freedom of speech.”). Thus, “[i]f [a] [p]laintiff can

demonstrate that he was terminated on account of his political beliefs, then the fact that he was

an at-will employee who could have been terminated for other permissible reasons is irrelevant

to the ultimate question of [d]efendants’ liability.” Lane, 490 F.3d at 419–20.4

B.

The first step in assessing a patronage dismissal claim requires asking whether the

plaintiff has produced sufficient evidence for a jury to find that he was discharged because of his

political beliefs or affiliations. Lane, 490 F.3d at 419. If the plaintiff succeeds in making this

prima facie showing, then the burden shifts to the defendant to demonstrate that the position falls

within an exception to the rule against patronage dismissals. Id. Here, in granting summary

judgment, the district court assumed arguendo that plaintiffs made out a prima facie case and that

the actual duties performed or expected to be performed by plaintiffs were in keeping with those

listed in the relevant Tennessee statutes.

The parties agreed that the position of county election commissioner held by defendants

falls within category one of the McCloud equation. Defendants argued to the district court that

plaintiffs’ administrator position likewise fit within category one, or alternatively, categories two

and/or three. Conversely, plaintiffs argued that none of the categories applied. The district court

determined that plaintiffs’ positions fell within categories two and three and, therefore, plaintiffs

were subject to patronage dismissal.

4

Although Tenn. Code Ann. § 2-12-116 and § 2-12-201 clearly grant the county election commission

authority to appoint the county election administrator, the statutes neither establish a set term nor provide for

automatic reappointment and are silent as to a dismissal procedure. In these circumstances, Tennessee common law

provides that “[t]he right of removal from office is an incident to the right of appointment unless the term of the

official is fixed by law for a definite period.” Gamblin v. Town of Bruceton, 803 S.W.2d 690, 693 (Tenn. Ct. App.

1990); see also Dingman v. Harvell, 814 S.W.2d 362, 365 (Tenn. Ct. App. 1991) (“[T]he office of Chief of Police

has no prescribed term and therefore at best the term of office is limited to that of the Board of Alderman which is

the appointing authority.”). Thus, election administrators are at-will employees whose terms are tied to those of the

county election commission. See Tenn. Op. Att’y Gen. No. 98-216, 1998 WL 851359, at *1 (Tenn. A.G. Nov. 23,

1998) (opining that “the county election commission may remove the administrator of election as it sees fit unless

there is a contract between the commission and the administrator that governs termination of the administrator.”).

This characteristic also removes the position from the “merit” system and gives rise to a presumption that it is

subject to patronage dismissals. McCloud, 97 F.3d at 1542.

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In this appeal, the parties reiterate their respective stances, but our review of the record

leads us to affirm the district court’s holding. As a preliminary matter, we note that some

defendants argue that the plaintiffs/administrators from their counties were terminated for

reasons other than political affiliation or voluntarily resigned. However, a genuine factual

dispute exists as to whether plaintiffs’ terminations were politically motivated and violated their

constitutional rights. Viewing the facts in the light most favorable to plaintiffs on defendants’

motions for summary judgment, plaintiffs have produced sufficient evidence to establish a prima

facie case of patronage dismissal or—alleging in detail that they were informed that they would

be terminated imminently because of their political affiliation and replaced with an individual

who was a member or supporter of the Republican Party—constructive discharge.

Defendants are nonetheless entitled to summary judgment because, as the district court

held, they have clearly met their burden of showing that the position of election administrator

falls under the Elrod–Branti exception to patronage dismissals, thereby precluding plaintiffs’ §

1983 claims.

We begin with defendants’ argument, rejected by the district court, that the position of

election administrator possesses the characteristics of a category-one position. As explained in

McCloud:

Category one captures the intuition gained from reading Elrod, Branti, and Rutan

that a chief executive’s cabinet secretaries and similar employees fall into the

Branti exception. The proviso that the policymaking authority possessed by a

category one position-holder must be held in relation to a matter of political

concern stems from the discussion in Branti that a football coach is a

policymaker, but not the sort of policymaker for whom political affiliation is an

appropriate requirement under the First Amendment. See Branti, 445 U.S. at

518[.]

McCloud, 97 F.3d at 1557 n.30.

The McCloud court gave as an illustrative example of category one “a secretary of state

given statutory authority over various state corporation law policies.” Id. at 1557. Under the

category one analysis, the focus is “on whether positions established in law are political in

nature.” Justice v. Pike Cnty. Bd. Of Educ., 348 F.3d 554, 560 (6th Cir. 2003). See, e.g., Ray v.

Davis, 528 F. App’x 453, 459 (6th Cir. 2013) (holding that the position of county trustee was a

No. 14-5219 Peterson, et al. v. Dean, et al. Page 12

category-one position because it was a “statutorily-created, elected position, vested with

discretionary authority to carry out functions of political concern, including the collection,

accounting, and distribution of state and county taxes.”); Hoard v. Sizemore, 198 F.3d 205, 214

(6th Cir. 1999) (holding that the position of county road foreman was inherently political and fell

squarely within the category one); Collins v. Voinovich, 150 F.3d 575, 578 (6th Cir. 1998)

(holding that the executive director of the Ohio Lottery Commission fell within category one

because it was a cabinet-level position named in state law and “charged with administering the

[lottery] in accordance with the governor’s mandate”); Mumford, 105 F.3d at 272–73 (“The

inherent duties of an Ohio domestic relations court referee . . . satisfy the strictures of categories

one, two, and three, as Ohio law expressly assigns some discretionary adjudicative authority to

the referees, permits Ohio judges to delegate other adjudicative powers to the referees, and

provides that the referees shall proffer advice (often in confidence) to the judges concerning the

disposition of cases and other legal controversies.”).

In Summe v. Kenton Cnty. Clerk’s Office, 604 F.3d 257 (6th Cir. 2010), we held that the

elected position of county clerk, established by the Kentucky Constitution, was a category-one

position, because it was an elected position with a four-year term and pursuant to state statute:

“County Clerks are charged with enforcing the law regarding the issuance of licenses, the

registration of voters and the running of elections, and the storage and maintenance of legal and

governmental records. County Clerks presumably have discretionary authority regarding how to

facilitate these numerous and varied duties.” Summe, 604 F.3d at 267. Relative to this position,

we deemed the chief deputy county clerk to be a category two post, because the deputy served at

the behest of the county clerk, the duties were defined entirely by the clerk, and the role was one

of confidential advisor who controlled lines of communication to the clerk and implemented a

cross-training program which entailed political concerns. Id. at 267–68.

Here, in an effort to convince the district court that plaintiffs are category-one employees,

defendants relied upon Summe, arguing that the position of election administrator is comparable

to the chief county clerk in Summe. But the district court rejected this notion, stating,

If anything, Summe supports the proposition that members of the county election

commission are, like the County Court Clerk, category-one employees, while the

administrator of elections is more akin to the position of Chief Deputy. . . .

No. 14-5219 Peterson, et al. v. Dean, et al. Page 13

Obviously, the members of the county election commission are not expected to

personally shoulder all of the job duties they are tasked with performing. Quite

the contrary, the county commission is required to hire an administrator who, as

indicated, is “responsible for the daily operations of the commission office and

the execution of all elections.” [Tenn. Code Ann. 2-12-116(a)(1)]. Moreover,

and also by statute, many of the responsibilities of the county commission are

effectively delegated to the administrator. For example, while the county election

commission is required to approve an annual budget, approve voting equipment,

and hire necessary legal counsel, it is to do so “upon the recommendation of the

administrator.” Id. §§ (a)(2)-(a)(4).

These specifics, as well as the overall interplay between the commission and the

administrator who runs the daily operations of the office, suggest “that the

position is one to which a significant amount of the total discretionary authority

available to category-one employees has been delegated.” Summe, 604 F.3d at

266. Just like the category-two Chief Deputy in Summe, county election

administrators, to a large extent, run the show for their appointing body, the

county election commission.

The court’s analogy is well taken. “Category two is constructed to recognize that it may

be necessary to deny First Amendment protection not just to positions at the very top of any state

administrative hierarchy, but in some cases to those occupying levels a bit farther down the

hierarchy.” McCloud, 97 F.3d at 1557 n.31. An illustrative example of a category-two

employee would be “a deputy secretary of labor in a state, to whom the secretary of labor has

delegated the responsibility for crafting the department’s annual proposed legislative agenda.”

Id. at 1557. “What distinguishes category two positions from others is the exercise of discretion

of political significance.” Justice, 348 F.3d at 561. “[T]he hallmark of a [category] two position

is not high rank, but political discretion, even if exercised at a fairly low level.” Id.

“Other significant [indicators] are whether the administrative assistant functioned as a

communicator on subjects not purely technical in nature, whether he had meaningful input into

government decisionmaking on issues where there is room for principled disagreement on the

goals or their implementations, and, more precisely, whether he had meaningful input into

decisions on where and when, within his [district,] work was to be done.” Rice, 14 F.3d at 1142

n.9 (citations and internal quotation marks omitted); see also Elrod, 427 U.S. at 368 (“In

determining whether an employee occupies a policymaking position, consideration should also

be given to whether the employee acts as an adviser or formulates plans for the implementation

of broad goals.”).

No. 14-5219 Peterson, et al. v. Dean, et al. Page 14

Accordingly, in Dixon v. Univ. of Toledo, 702 F.3d 269, 276 (6th Cir. 2012), we held that

an associate vice-president of human resources for a state university, who was responsible for

recommending, implementing, and overseeing policy, and supervising other employees, was a

category-two employee. And in Ray, 528 F. App’x at 459–60, we deemed the position of

business manager for a county trustee to be a category-two position, noting that the county

trustee was a category-one employee to whom the business manager was responsible for

facilitating the collection, accounting, and distribution of state and county taxes, preparing the

personnel manual, supervising all employees in the office, presenting financial reports to the

county commission, controlling the office bank account, and making budgetary decisions. See

also Garvey v. Montgomery, 128 F. App’x 453, 466 (6th Cir. 2005) (administrative officer, who

possessed broad authority to manage the central operations of the county recorder’s office, was a

category-two position); Hoard, 198 F.3d at 215–16 (assistant county road foreman, garage

supervisor/purchasing agent, and senior citizens director were category-two positions).

The position of Tennessee administrator of elections neatly fits within the types of

positions contemplated by our court as category-two positions, for the reasons articulated by the

district court. Since the commissioners do not hold full-time positions, the statutes expressly

provide that the administrator of elections is the “chief administrative officer of the commission”

who is “responsible for the daily operations of the commission office and the execution of all

elections.” Tenn. Code Ann. §§ 2-12-116(a)(1), 2-12-201(a). By statute, numerous

responsibilities of the commission are expressly delegated to the administrator. For instance,

“upon the recommendation of the administrator,” the commission is required to approve an

annual budget, approve the purchase of voting equipment, and hire legal counsel if necessary to

conduct the business of the commission. Tenn. Code Ann. § 2-12-116(a)(2)-(4). Thus, “the

position is one to which a significant amount of the total discretionary authority available to

category-one employees has been delegated.” Summe, 604 F.3d at 266.

The comprehensive list of statutory duties of the administrator make it clear that the

administrator must think independently, analyze information, formulate policies and procedures,

advise the commission, and exercise considerable political discretion. Significantly, the

administrator makes recommendations to the election commission regarding the implementation

No. 14-5219 Peterson, et al. v. Dean, et al. Page 15

of any plans for redistricting, precinct boundaries, polling stations, and early voting locations.

Tenn. Code Ann. § 2-12-201(a)(13), (a)(15), and (a)(16). These duties bear obvious political

implications. See Gaffney v. Cummings, 412 U.S. 735, 753 (1973) (“Politics and political

considerations are inseparable from districting and apportionment. . . . The reality is that

districting inevitably has and is intended to have substantial political consequences.”); see also

Shaw v. Reno, 509 U.S. 630, 661 (1993) (“Redistricting plans also reflect group interests and

inevitably are conceived with partisan aims in mind.”).

The administrator also maintains and oversees all fiscal matters, prepares the budget for

the commissioners for their approval, and then presents the budget on behalf of the election

commission to the county commission for funding. Tenn. Code Ann. §§ 2-12-201(a)(2), (a)(3),

and (a)(8). Because “[m]oney consistently plays a very important role in politics . . . budgetary

decisions are among the most significant, and the most political, actions which government

officials take.” Blair, 76 F.3d at 100. “The efficient and orderly administration of a budget is an

integral part of the budgetary process and certainly has key political implications and

consequences.” Id. The position of administrator is therefore of a nature that permits

appointment determinations to take political affiliation into consideration under this court’s

precedents.

No doubt, administrators execute numerous clerical, administrative, and purely

ministerial responsibilities. The administrator must requisition supplies, maintain voter

registration files, conduct classes for poll workers, prepare election notices, compile and

disseminate information to the public, and attend seminars. See Tenn. Code Ann. § 2-12-201(a).

Plaintiffs cite several Tennessee Supreme Court opinions5 for the proposition that the office of

election administrator is purely ministerial in nature, with only limited discretionary powers, and,

therefore, not subject to patronage dismissal. However, as defendants argue and the district court

found, these decisions discussing the ministerial aspects of the commission and administrator

positions involved entirely inapposite contexts, with little or no bearing on the issues relevant to

an Elrod–Branti exception analysis. Moreover, the fact that some duties of the administrator

5

See City of Memphis v. Shelby Cnty. Election Comm’n, 146 S.W.3d 531 (Tenn. 2004); Shelby Cnty.

Election Comm’n v. Turner, 755 S.W.2d 774 (Tenn. 1988); Peeler v. Beasley, 231 S.W.2d 321 (Tenn. 1950); Curtis

v. State, 43 S.W.2d 391 (1931); Taylor v. Carr, 141 S.W. 745 (Tenn. 1911).

No. 14-5219 Peterson, et al. v. Dean, et al. Page 16

may be classified as “ministerial” does not preclude the determination that other designated

duties, such as budgeting, reapportionment, and acting as an adviser to the commission are

policymaking and inherently political tasks.

Plaintiffs also assert that the position of administrator should be apolitical, arguing that

“affiliation with a dominant political party [is not] a necessary requirement for the effective

performance of the task of holding free and impartial elections.” Appellant’s Brief at p.10.

However, “the test is not whether party affiliation and support are essential to the effective

performance of the public office involved; the test, under Branti, is whether these are

‘appropriate’ requirements.” Rice, 14 F.3d at 1142. In this vein, one court has aptly pointed out

that the requirement of nonpartisanship for a comparable position of county elections manager is

not determinative of the Elrod–Branti question: “[I]t would be inappropriate for an Elections

Manager to use his or her position to skew elections or influence voters on political questions.

But the issue here is not how much political change the officeholder may validly effectuate, but

rather whether there is a need for the officeholder to be committed to the goals and objectives of

the reigning faction.” Soelter v. King Cnty., 931 F. Supp. 741, 747 (W.D. Wash. 1996), aff’d 132

F.3d 40 (9th Cir. 1997) (citing our decision in Newman, 986 F.2d at 162–63 (holding that the fact

that judges must be nonpartisan decisionmakers does not mean political affiliation cannot be

considered in making judicial appointments)).

In Soelter, a former county manager of records and elections in the state of Washington

brought a wrongful discharge action under § 1983 against the county defendants, alleging that

her discharge for political reasons violated the First and Fourteenth Amendments. The plaintiff

claimed that she was dismissed by the newly-elected county executive, a Democrat, because she

was a member of the Republican Party. Soelter, 931 F. Supp. at 742. The district court granted

the defendants’ motion for summary judgment, applying the Elrod–Branti exception to conclude

that the manager’s statutory duties and non-merit status “ma[de it] clear that political affiliation,

or more specifically commonality of political purpose and support, is an appropriate requirement

for the position.” Id. at 745. The court explained:

The Elections Manager possesses a substantial degree of responsibility and

discretion in running the Division of Records and Elections. The officeholder

makes significant decisions concerning how elections are conducted, where

No. 14-5219 Peterson, et al. v. Dean, et al. Page 17

polling places are located, how and in what form information is disseminated to

voters and the public at large, and in certain cases whether precincts are

combined, united, or divided for purposes of a particular election. In addition, the

Elections Manager communicates with and works with the governing bodies of

cities, towns, and districts in establishing the manner in which county or local

elections are conducted, and in formulating administrative rules governing

dissemination of voter information. The Elections Manager also performs certain

quasi-judicial functions, in that he or she conducts hearings and issues binding

rulings on challenges to voter registration. Given the scope of the duties inherent

in the position, it is clear that the Elections Manager has meaningful input into

government decisionmaking on issues where there is room for principled

disagreement on goals or their implementation.

***

Defendants have identified several issues within the province of the Elections

Manager where there is room for principled disagreement between the political

parties, such as whether aggressive efforts should be made to increase voter

registration, whether voter registration should be simplified, and whether voting,

by mail or otherwise, should be made easier. There is also substantial room for

disagreement on issues of budgeting and the setting of fiscal priorities for the

division. Thus, while the Elections Manager must act in a nonpartisan manner, he

or she nevertheless plays an important role in the implementation and effectuation

of the County Executive’s policies. Because the position of Elections Manager

authorizes, either directly or indirectly, meaningful input into government

decisionmaking on issues where there is room for principled disagreement on

goals or their implementation, political affiliation may constitutionally serve as a

requirement for the position.

Id. at 745–47 (citation and internal quotation marks omitted); see also Millus v. D’Angelo,

224 F.3d 137, 138 (2d Cir. 2000) (per curiam) (holding that the plaintiffs’ position as elections

day operations coordinator, employed by the city board of elections, was one of political

patronage and thus was not entitled to First Amendment protection).

This rationale is applicable to the present analogous position and reinforces the district

court’s conclusion in the present case that political affiliation is a permissible consideration in

selecting an elections administrator under Tennessee law. As noted, the election commission, as

the appointing entity, is selected entirely based on political factors. Control of the election

commission was designed by the Tennessee legislature to change periodically in order to give the

“majority” party complete practical control of the state and county election commissions. As

defendants argue, prohibiting the majority party from taking party affiliation into account when

No. 14-5219 Peterson, et al. v. Dean, et al. Page 18

selecting its chief administrator, especially following a flip in majority status as happened here,

could cause substantial friction and administrative upset between commissioners and the

administrator. The entire operation of the election commission is a matter of political concern

where the party in power is granted, by statute, control over the management of local elections in

a manner that the majority political party believes best comports with the requirements of the

law. Consequently, all of the identified duties of the administrator that involve policy matters

are matters of political concern. Under these circumstances, as the district court concluded, it is

appropriate to allow the county election commissions that are politically appointed to take into

consideration political party affiliation for the purpose of selecting their chief administrative

officer. Therefore, we hold that the district court did not err in determining that the inherent

responsibilities of an election administrator constituted a policymaking position that falls within

category two of the McCloud analysis.

C.

As the district court found, plaintiffs’ position also fits with reasonable certainty within

the contours of a category-three position. “Category three is formulated to comport with the

discussion in Branti indicating that a state governor may ‘believe that the official duties of

various assistants who help him write speeches, explain his views to the press, or communicate

with the legislature cannot be performed effectively unless those persons share his political

beliefs and party commitments.’” McCloud, 97 F.3d at 1557 n.32 (quoting Branti, 445 U.S. at

518). “This category also includes those who control the lines of communication to category one

or category two position-holders,” id., and “is concerned with this type of employee’s access to

confidential, political information transmitted to the policymaker, which requires political

loyalty.” Sowards, 203 F.3d at 437.

[W]here . . . the employee exercises significant authority on behalf of a

policymaker (even with close supervision), where the employee is responsible for

making important policy implementation recommendations to a policymaker, and

where the inherent duties of the employee are broad and limited primarily by the

discretion of the policymaker, it is likely that the employee is herself a

confidential or policymaking employee under Elrod.

Latham v. Office of Att’y Gen. of State of Ohio, 395 F.3d 261, 268–69 (6th Cir. 2005).

No. 14-5219 Peterson, et al. v. Dean, et al. Page 19

The duties of the administrator of elections meet these criteria. The administrator spends

a significant portion of time advising the commissioners, category-one employees, on how to

exercise their statutory policymaking authority, including apprising the commissioners of current

laws and changes in the law, assisting in reapportionment matters, preparing the annual budget,

and overseeing election operations. Obviously, the administrator, as the chief administrative

officer for the commission, also controls the lines of communications to category-one

employees, the commissioners. Thus, consistent with our case law, we have no hesitation in

concluding that category three also applies to the administrator. See Ray, 528 F. App’x at 460–

61 (the position of business manager for the county trustee occupied a confidential advisor role

and therefore was a category-three position); Summe, 604 F.3d at 268–69 (affirming

categorization of deputy county clerk as not just a category two but also a category-three

position); Latham, 395 F.3d at 268–69 (assistant state attorney general was a category-three

position because, although closely supervised, she was responsible for making policy

recommendations to the state attorney general); Collins, 150 F.3d at 578 (Ohio Lottery

Commission legal-counsel position falls within category three because it entails

“communicat[ing] departmental views to the press or the legislature”); Hall, 128 F.3d at 426 n.4

(chief deputy sheriff, who at times acted as “confidential advisor to the sheriff,” was a category-

three employee).

Because the position of Tennessee administrator of elections is a position for which

political affiliation is a permissible requirement for the effective performance of that public

office, the district court properly granted summary judgment in favor of defendants on the

ground that plaintiffs were lawfully subject to patronage dismissal.6

III.

For the foregoing reasons, we affirm the judgment of the district court.

6

In light of our holding, we need not address plaintiffs’ next argument that the district court erred in

determining in a separate ruling that defendants were entitled to qualified immunity for claims brought against them

in their individual capacities. A qualified immunity defense is “implicitly addressed by the Elrod–Branti analysis.”

Ray, 528 F. App’x at 461 n.8. “Determining whether qualified immunity exists generally involves first determining

whether a constitutional violation occurred and, if so, a subsequent determination of whether the right infringed was

clearly established. Therefore, in order to overcome qualified immunity, [plaintiffs] would have to establish that a

‘clearly established’ constitutional right was violated[,]” and “[b]ecause [plaintiffs’] dismissal falls into the Elrod–

Branti exception, no constitutional violation occurred.” Id. (citation omitted).

No. 14-5219 Peterson, et al. v. Dean, et al. Page 20

_________________

DISSENT

_________________

CLAY, Circuit Judge, dissenting. I respectfully dissent. Tennessee law concerning the

position of county election administrator, in my view, compels a conclusion that the position is

not one for which political loyalty is an appropriate requirement. First, county election

administrators serve multi-member commissions that, by statutory design, include members of

both the majority and the minority political parties. Second, contrary to the majority, I conclude

that the duties assigned to the county administrators by statute do not involve significant

policymaking discretion, and that the position is not otherwise suited to classification as category

two under the McCloud framework. McCloud v. Testa, 97 F.3d 1536, 1557 (6th Cir. 1996).

Third, because the administrator is not in a confidential relationship with the county election

commission, nor would such a relationship be appropriate in light of Tennessee’s open meeting

laws, I do not agree with the majority’s alternative holding that Plaintiffs were subject to

patronage dismissal as category three employees under the McCloud framework.

I.

The majority takes as its point of departure the apparent agreement of the parties that the

position of county election commissioner falls within category one of the McCloud scheme.

Maj. Op. at 10. This classification appears to be inescapably flawed, and the majority errs by

uncritically relying on the parties’ stipulation on this point of law. Neuens v. City of Columbus,

303 F.3d 667, 670 (6th Cir. 2002) (“‘Parties may not stipulate to the legal conclusions to be

reached by the court.’”) (quoting TI Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir.

1995)).

Under McCloud, category one comprises positions named by law “to which discretionary

authority with respect to the enforcement of that law or the carrying out of some other policy of

political concern is granted.” 97 F.3d at 1557. Under Tennessee law, county election

commissioners do not enjoy discretion or policymaking authority sufficiently robust to meet this

test. For a century, the Tennessee Supreme Court has repeatedly held that the authority of

No. 14-5219 Peterson, et al. v. Dean, et al. Page 21

county election commissions is ministerial, rather than discretionary, in nature.1 City of

Memphis v. Shelby Cnty. Election Comm’n, 146 S.W.3d 531, 535 (Tenn. 2004) (“as ministerial

officers, the [County Election] Commission and the [State Election] Coordinator have limited

discretion.”); Shelby Cnty. Election Comm’n v. Turner, 755 S.W.2d 774, 776 (Tenn.1988)

(“[T]he Election Commission has only ministerial duties.”); Peeler v. State ex rel. Beasley,

231 S.W.2d 321, 323 (1950) (holding that the duties of county election commissions are

ministerial); Curtis v. State, 43 S.W.2d 391 (1931); Taylor v. Carr, 141 S.W. 745, 750 (1911)

(“The duties of the commissioners of election are only ministerial”); see State ex rel. Tidwell v.

Morrison, 274 S.W. 551, 552 (1924).

Nor does an examination of their statutory duties support a conclusion that Tennessee

county election commissions enjoy a significant degree of “discretionary authority with respect

to . . . [some] policy of political concern.” McCloud, 97 F.3d at 1557 (defining category one).

These duties are in large part detailed and mandatory, comprising tasks such as certifying and

canvassing voting machines, certifying election results, sealing absentee ballot boxes, and

keeping minutes of all commission meetings. Tenn. Code Ann. § 2-12-116 (6), (8), (11), (12).

Even in the performance of duties that arguably entail some degree of discretion, such as

purchasing voting machines or hiring an election administrator, the commission must adhere to

detailed standards spelled out in statute or regulation. See, e.g., Tenn. Code. Ann. §§ 2-9-101, 2-

9-110, 2-9-117 (setting detailed specifications for voting machines; requiring non-standard

machines to conform with the rules of state election coordinator; requiring approval of the state

coordinator of elections and state election commission prior to purchase as well as periodic

review by these authorities to ensure that the machines “meet the minimum criteria for

certification”); Tenn. Code Ann. § 2-11-16(1) (requiring the commission to consider a

candidate’s competencies in nine subject areas in appointing an administrator). In short, it does

not appear that the commissions exercise meaningful discretion “on issues where there is room

for principled disagreement on the goals or their implementations.” See Rice v. Ohio Dept. of

1

Although it is true these decisions were not reached with any reference to the Elrod-Branti exception to

First Amendment protection against patronage dismissal, the state high court’s consistent description of

commissioners as ministerial officers is impossible to reconcile with the degree of discretionary authority envisioned

in McCloud category one. The majority distinguishes this clear precedent from the Tennessee Supreme Court as

involving “entirely inapposite contexts, with little or no bearing on the issues relevant to an Elrod-Branti exception

analysis.” Maj. Op. at 15. I do not perceive how the context of these decisions could be “inapposite” to an analysis

that considers the “inherent duties” of a given position. Heggen v. Lee, 284 F.3d 675, 681 (6th Cir. 2002).

No. 14-5219 Peterson, et al. v. Dean, et al. Page 22

Transp., 14 F.3d 1133, 1142 n.9 (6th Cir. 1994) (quoting Nekolny v. Painter, 653 F.2d 1164,

1170 (7th Cir. 1981)).

If the discretionary authority of the commission is narrow, the discretion enjoyed by any

single county election commissioner with regard to these duties is necessarily even more limited,

with the added hurdle of obtaining the concurrence of at least two other commissioners to act as

a majority. Indeed, McCloud’s category one is a poor fit for a multi-member public body,

particularly one that, by statute, is composed of appointees representing both the majority and the

minority parties. Tenn. Code Ann. § 2-12-103(a). If the majority opinion is to be believed, the

commissioners representing the minority in fact have no discretionary authority at all, because

“complete practical control” has been granted to commissioners from the majority party. Maj.

Op. at 17.

Instead, commissioners are more appropriately classified as category four officials under

McCloud. That category covers “positions that are part of a group of positions filled by

balancing out political party representation.” McCloud, 97 F.3d at 1557. As this Court

explained in McCloud, this fourth category was “formulated to accommodate the example given

in Branti that an election judge could be dismissed without violating the First Amendment where

state law requires that one election judge be a Democrat and the other a Republican”—a

pertinent example for this case. Id. at 1557, n.33 (citing Branti, 445 U.S. at 518). Although the

majority interprets Tennessee’s statutory system as designed to give control to the majority party,

the same statutory framework just as plainly requires representation of the minority party.

Moreover, an intention to moderate majority control with some amount of balance between the

parties is reflected in § 2-12-105, which requires each county election commission to select a

chair and a secretary of opposing parties.

The proper categorization of county election commissioners is not a matter of idle

interest. The majority relies substantially on the relationship between the administrator and the

commission, emphasizing that numerous duties of the commission are delegated to the

administrator and that the commission in many instances acts on the recommendation of the

administrator. Maj. Op. at 14 (citing Summe, 604.F.3d at 266 (“the position is one to which a

significant amount of the total discretionary authority available to category-one employees has

No. 14-5219 Peterson, et al. v. Dean, et al. Page 23

been delegated.”)). But the parties’ agreement that commissioners are category one officials

cannot create discretion on issues of political importance where the discretion does not otherwise

exist.

I do, however, agree that the relationship between the administrator and the

commissioners is important in determining whether the position falls within the Elrod-Branti

exception to First Amendment protection against dismissal based on perceived political

affiliation. As the Supreme Court has explained, the “ultimate inquiry” in a patronage dismissal

case is “whether the hiring authority can demonstrate that party affiliation is an appropriate

requirement for the effective performance of the public office involved.” Branti, 445 U.S. at

517-18 (emphasis added). Only in these circumstances is the state interest compelling enough to

justify infringing First Amendment rights. Rutan v. Republican Party of Ill., 497 U.S. 62, 71 n.5

(1990). See also McCloud, 97 F.3d at 1543. Here, the administrator serves a commission that,

by explicit statutory design, includes commissioners affiliated with both the majority and the

minority political parties. This fact, it seems to me, argues powerfully for the conclusion that it

would be inappropriate to select the administrator based on political affiliation with one of those

parties.

II.

Directly analyzing the statutory duties of the administrator leaves me still unable to agree

with the majority that the position may be appropriately classified as category two under the

McCloud framework. The bulk of the administrator’s duties are ministerial and administrative in

nature, covering such matters as purchasing supplies, maintaining voter registration files and

campaign disclosure records, providing for the instruction of poll workers, and maintaining fiscal

records. § 2-12-201(a).

The majority heavily emphasizes the administrator’s role in assisting with apportionment

and redistricting processes, as well as the administrator’s responsibility to set precinct locations,

precinct boundaries, and early voting sites. As to apportionment and redistricting, the

administrator’s role should not be overstated: the relevant voting boundary lines are proposed

and drawn by the General Assembly or by the legislative bodies of other pertinent units of

government. See Tenn. Const., Art. II, § 4; Tenn. Code Ann. §§ 3-1-102, 3-1-103 (general

No. 14-5219 Peterson, et al. v. Dean, et al. Page 24

assembly shall set state senatorial and representative districts); Tenn. Const., Art. VII, § 1; Tenn.

Code Ann. § 5-1-111 (county legislative bodies shall reapportion their districts every ten years).

The political considerations of drawing electoral boundaries—considerations that are of course

subject to constitutional limits—are primarily and significantly the responsibility of the political

bodies drawing those boundaries. It bears remembering that some of the local governmental

units turning to the administrator for assistance in the apportionment process may well be

controlled by the party that is in the minority at the state level. It is therefore unsurprising that,

as Plaintiffs attest in their affidavits, the role of county election administrators in this process is

historically confined to supplying information regarding the number of eligible voters in relevant

areas.

The administrators’ responsibility in developing plans regarding precinct boundaries and

the selection of polling places also falls short of vesting the position with material discretionary

authority. The majority opinion does not articulate how these decisions concern issues allowing

for principled disagreement on policy goals or implementation, but the brief of one set of

Defendants is more forthcoming:

[I]f an election commission, by majority vote, wishes to make it more difficult for

a certain voting block perceived as being in favor of the minority party to

conveniently vote, they need only move the polls to a different location in the

precinct where it is less convenient, or reduce the number of early voting sites.

Dennis et al. Defs.’ Br. at 25. Dirty tricks and voter suppression (whose constitutionality even

where protected classes are not at issue must seriously be doubted, see, e.g., Davis v. Bandemer,

478 U.S. 109 (1986)) are emphatically not the kind of appropriate policy goals that can justify

infringing on an individual’s First Amendment rights under the Elrod-Branti exception. The

question, after all, is whether “party affiliation is an appropriate requirement for the effective

performance of the public office involved.” Branti, 445 U.S. at 518 (emphasis added); see also

id. at 517 n.12 (noting that the Elrod plurality “emphasized that patronage dismissals could be

justified only if they advanced a governmental, rather than a partisan, interest.”).

Nor do county election administrators’ budgetary responsibilities meaningfully support a

category two designation. Plaintiffs’ affidavits regarding their responsibilities explain that they

had “no discretionary authority” in performing this duty. (See, e.g., R. 250, Zehner Affidavit.)

No. 14-5219 Peterson, et al. v. Dean, et al. Page 25

As they explain, “A county election budget is simply a prediction of expense for the next fiscal

year based upon experience from prior elections,” derived from objective inputs like the number

of polling places. (Id.) The county election commission then must approve the budget, of course

subject to any amendment desired by a majority of the election commissioners, then submit it to

the county governing body for approval. Administrators’ role in this process is not particularly

significant, nor, in contrast to the plaintiff in Blair v. Meade, 76 F.3d 97, 100-101 (6th Cir.

1996), do they directly advise those ultimately responsible for making the political decisions

regarding how to balance the funding needs of different functions of county government.

The majority’s remaining arguments are unconvincing. Application of the presumption

that a non-civil service position is subject to patronage dismissal cannot overcome the fact that

administrators simply do not meet the requirements of McCloud category two. Nor is the

reasoning of Soelter v. King County, 931 F. Supp. 741 (W.D. Wash. 1996) persuasive. The

elections manager at issue in that case appeared to enjoy significantly more policymaking

responsibility, for example, in determining the “manner in which county or local elections are

conducted,” determining “in some cases, whether special elections will be conducted” at all, and

lobbying and drafting official legislation as a representative of the county executive. 931 F.

Supp. at 745-46. McConnell v. Adams, 829 F.2d 1319 (4th Cir. 1987) is a much better guide for

the present case. There, the Fourth Circuit held that a position comparable to a county election

administrator was protected from patronage dismissal where the statute required “certain

political party affiliation for members of electoral boards,” but not for the registrars, and it did

not appear that “political party affiliation would either enhance or detract from a registrar’s job

performance.” Id. at 1324. The court explained that “[w]hile the Virginia statutory scheme may

facilitate political patronage in the appointment of registrars, this alone does not satisfy the

Branti standard. Party affiliation must be more than a matter of convenience; it must be an

appropriate requirement for the position.” Id.

In sum, the duties of the administrators do not entail the type of discretionary authority

that under McCloud’s category two renders political affiliation with the reigning party on the

commission an appropriate qualification for office.

No. 14-5219 Peterson, et al. v. Dean, et al. Page 26

III.

Finally, county election administrators cannot reasonably be considered category three

officials under the McCloud framework. Category three “is concerned with [an] employee’s

access to confidential, political information transmitted to the policymaker, which requires

political loyalty.” Sowards v. Loudon Cnty., Tenn., 203 F.3d 426, 437 (2000). The primary flaw

in applying category three to county election administrators is that there is no evidence from the

description of their statutory duties or otherwise that they are in a confidential relationship—a

necessary element of the category—with the county election commissions. McCloud, 97 F.3d at

1557 (describing category three employees as “confidential advisors . . . or other confidential

employees who control the lines of communications to category one positions, category two

positions or confidential advisors.”) (emphasis added). To the contrary, meetings of the

commission are governed by Tennessee’s open meetings law. Tenn. Code. Ann. § 8-44-101 et

seq.

An official serving a multi-member commission composed of representatives from

opposing political parties cannot be presumed to occupy a position of confidential trust in a

manner analogous to category one officials and their chief deputies or staff advisors. In some

cases, other facts may establish confidentiality, such as the lawyer-client relationship between a

city attorney and the city council. No such extenuating circumstances are applicable here.

Therefore, I cannot agree with the majority that Plaintiffs were subject to patronage dismissal as

category three employees.

CONCLUSION

Because county election administrators enjoy neither the discretionary authority on issues

of political importance nor the confidential relationship with their commissions that would

render them exempt from First Amendment protections, I would reverse the district court’s grant

of summary judgment. Additionally, because the McCloud categories were clearly established as

the framework guiding application of the Elrod-Branti exception in this circuit, and because the

reasoning above regarding their duties is an uncomplicated application of McCloud, I would also

reverse the grant of qualified immunity.