“There is no comparison to be drawn from laws which afford equality of opportunity to all political parties, and those that expressly prohibit a person from government employment because of a protected characteristic.”
How later courts described this case
- “There is no comparison to be drawn from laws which afford equality of opportunity to all political parties, and those that expressly prohibit a person from government employment because of a protected characteristic.”
Written by the judges who cited it.
The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0030p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LIBERTARIAN PARTY OF OHIO and HAROLD THOMAS, ┐
Plaintiffs-Appellants, │
│
│ No. 20-3585
v. >
│
│
DEGEE WILHEM, HELEN E. BALCOLM, OTTO BEATTY, │
III, DENNIS BROMMER, DON MICHAEL CRITES, │
CATHERINE A. CUNNINGHAM, and A. SCOTT NORMAN, │
in their official capacities, │
Defendants-Appellees. │
│
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:19-cv-02501—Algenon L. Marbley, District Judge.
Argued: August 24, 2020
Decided and Filed: February 10, 2021
Before: GRIFFIN, KETHLEDGE, and WHITE, Circuit Judges.
_________________
COUNSEL
ARGUED: Mark R. Brown, Columbus, Ohio, for Appellants. Michael J. Hendershot, OFFICE
OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees. ON BRIEF: Mark
R. Brown, Columbus, Ohio, for Appellants. Michael J. Hendershot, Benjamin M. Flowers,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.
No. 20-3585 Libertarian Party of Ohio, et al. v. Wilhem, et al. Page 2
_________________
OPINION
_________________
GRIFFIN, Circuit Judge.
Ohio law mandates that the Ohio Elections Commission (OEC) be composed of three
members from each of the top two political parties in the state, and an additional seventh
member who cannot have any political affiliation. See Ohio Rev. Code § 3517.152(A)(1). The
Libertarian Party of Ohio (LPO) and its former chairman, Harold Thomas, contend this law
violates their First Amendment right to associate for political purposes. The district court
disagreed, and we affirm.
I.
A.
Plaintiff Harold Thomas is the former chairman of the Libertarian Party of Ohio and a
current member of the LPO.1 During the 2020 election season, the LPO was a minor political
party recognized in Ohio, but it lost its status by not receiving a sufficient share of the vote in the
2020 general election. Defendants are the appointed members of the Ohio Elections
Commission (OEC or the Commission) and have been sued in their official capacities.
“[T]he Commission is an independent agency consisting of seven members, six of whom
are appointed by the governor on the recommendation of the combined state House and Senate
caucuses of the major political parties. Three members are appointed from each of the two major
political parties and the seventh is an unaffiliated elector appointed by the other six members.”
Project Veritas v. Ohio Election Comm’n, 418 F. Supp. 3d 232, 236–37 (S.D. Ohio 2019). All
members of the OEC serve five-year terms. The OEC enforces Ohio’s campaigning and election
laws. It may investigate complaints, issue fines, and publish advisory opinions on matters of
Ohio election law. See id. It is also empowered to refer criminal violations of Ohio’s election
law to county prosecutors. See Ohio Admin. Code § 3517-1-14-(B)(3) and (C).
1
Thomas resigned his executive position while this appeal was pending.
No. 20-3585 Libertarian Party of Ohio, et al. v. Wilhem, et al. Page 3
The procedure for selecting OEC Commissioners is set forth in Ohio Revised Code
§ 3517.152(A)(1):
There is hereby created the Ohio elections commission consisting of seven
members.
. . . [T]he speaker of the house of representatives and the leader in the senate of
the political party of which the speaker is a member shall jointly submit to the
governor a list of five persons who are affiliated with that political party. . . .
[T]he two legislative leaders in the two houses of the general assembly of the
major political party of which the speaker is not a member shall jointly submit to
the governor a list of five persons who are affiliated with the major political party
of which the speaker is not a member. Not later than fifteen days after receiving
each list, the governor shall appoint three persons from each list to the
commission.
***
Not later than thirty days after the governor appoints these six members, they
shall, by a majority vote, appoint to the commission a seventh member, who shall
not be affiliated with a political party. If the six members fail to appoint the
seventh member within this thirty-day period, the chief justice of the supreme
court, not later than thirty days after the end of the period during which the six
members were required to appoint a member, shall appoint the seventh member,
who shall not be affiliated with a political party.
As defendants observe, § 3517.152(A)(1) does not restrict the partisan seats to any specific party.
Instead,
three members will be selected from any party that wins enough seats in the
legislature to qualify as one of the State’s two major parties. Thus, the parties to
this appeal do not dispute that, if “a minor party” builds “its base and become[s]
one of the two major parties in the state,” it would secure “an avenue for its
members to serve on the Elections Commission.” Rightly so: though the statute
does not say so expressly, it is implicit in the statute’s party-neutral design that a
political party, upon losing its major-party status, loses to the new major party its
ability to nominate members to fill seats for which the term has expired.
Record citations omitted. Based on this procedure and Ohio’s election results, there are
presently three Republican commissioners, three Democrat commissioners, and one
commissioner with no party affiliation. See Ohio Elections Commission, Members/Staff,
available at https://elc.ohio.gov/wps/portal/gov/elc/about-us/membership-staff (last visited Feb.
4, 2021).
No. 20-3585 Libertarian Party of Ohio, et al. v. Wilhem, et al. Page 4
B.
In the lead-up to Ohio’s 2018 gubernatorial election, three organizations hosted televised
debates between the nominees chosen by the Democratic Party and the Republican Party, to the
exclusion of other candidates, including the ballot-qualified nominee of the LPO. In September
2018, the LPO filed administrative complaints with the OEC, alleging that each of the
organizations hosting those debates had violated Ohio’s campaign-finance laws because the
exclusive debates between major-party candidates were illegal, in-kind campaign contributions.
See Ohio Rev. Code § 3599.03. But in December 2018, the OEC found no violation and
dismissed the administrative complaints.
The LPO and Thomas then sued the individual commissioners of the OEC in their official
capacities, alleging violations of their First and Fourteenth Amendment rights. As relevant here,
plaintiffs alleged that § 3517.152(A)(1) violated their First Amendment associational rights
because it rendered LPO members ineligible for service on the OEC.2 The district court entered
summary judgment in defendants’ favor, reasoning § 3517.152(A)(1) withstood constitutional
scrutiny under either of two potential frameworks. This timely appeal followed.
II.
We review the district court’s summary judgment determination de novo. Thomas M.
Cooley Law Sch. v. Kurzon Strauss, LLP, 759 F.3d 522, 526 (6th Cir. 2014). Summary
judgment is appropriate only if “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III.
Initially, we must address defendants’ assertion, first raised on appeal, that plaintiffs lack
standing. The “irreducible constitutional minimum” of standing consists of three
elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Plaintiffs must have
(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the
2
Plaintiffs also alleged selective enforcement of Ohio’s campaign finance laws. The district court
dismissed those claims for lack of standing, and plaintiffs do not challenge that ruling on appeal.
No. 20-3585 Libertarian Party of Ohio, et al. v. Wilhem, et al. Page 5
defendant, and (3) that is likely to be redressed by a favorable judicial decision. Id. at 560–561.
Absent these three elements, a plaintiff has failed to show a present “case or controversy” that
we are authorized to adjudicate under Article III of the Constitution. Id. at 560 (“[T]he core
component of standing is an essential and unchanging part of the case-or-controversy
requirement of Article III.”). Therefore, even though the failure to raise an issue before the
district court usually renders it forfeited on appeal, see, e.g., F.T.C. v. E.M.A. Nationwide, Inc.,
767 F.3d 611, 630 (6th Cir. 2014), we must consider plaintiffs’ standing because it implicates
our subject-matter jurisdiction, see Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), and
such defects cannot be forfeited, see United States v. Cotton, 535 U.S. 625, 630 (2002)
(“[D]efects in subject-matter jurisdiction require correction regardless of whether the error was
raised in district court.”).
The OEC offers several reasons why plaintiffs have not demonstrated their standing to
challenge § 3517.152(a). First, it says that Thomas, as LPO chairman, was not eligible for
membership on the Commission at the time the lawsuit was filed under a separate provision
of § 3517.152. Specifically, defendants point out that Ohio law prohibits political party officers
from serving on the OEC. See Ohio Rev. Code § 3517.152(F)(1)(c) (“No member of the Ohio
elections commission shall . . . [b]e an officer of the state central committee, a county central
committee, or a district, city, township, or other committee of a political party or an officer of the
executive committee of the state central committee, a county central committee, or a district,
city, township, or other committee of a political party[.]”). While Thomas is no longer the
chairman of the LPO, standing must exist from the outset of the suit, so if Thomas lacked Article
III standing at the time the complaint was filed, his resignation of the chairmanship cannot cure
the defect. See Smith v. Jefferson Cty. Bd. of Sch. Comm’rs, 641 F.3d 197, 206 (6th Cir. 2011).
But Thomas had standing at the outset of the suit. As the OEC concedes, Thomas “has
introduced evidence that he would like to be on the Ohio Elections Commission[,]” but his
membership in the Libertarian Party prevents him from being considered for the seventh
commission seat. Under these circumstances, “a plaintiff need not translate his or her desire for
a job into a formal application” because “that application would be merely a futile gesture.”
Carney v. Adams, 141 S. Ct. 493, 503 (2020) (internal quotation marks, brackets, and citation
No. 20-3585 Libertarian Party of Ohio, et al. v. Wilhem, et al. Page 6
omitted).3 Further, the separate provision § 3517.152 poses no obstacle to Thomas’s eligibility
because it prohibits a person only from simultaneously holding public office as an OEC
commissioner and a leadership position in a political party. See § 3517.152(F)(1)(c).
Accordingly, if Thomas had been selected for a seat on the OEC, he could have resigned his
party leadership role (and has now done so while this appeal was pending). Thus, the record
demonstrates that Thomas has standing to challenge § 3517.152(A)(1), and further discussion of
plaintiffs’ standing is unnecessary to our resolution of the suit. See Mays v. LaRose, 951 F.3d
775, 782 (6th Cir. 2020).
IV.
Moving now to the merits, we recognize that there are arguably two frameworks that
plaintiffs may invoke to establish a violation of their First Amendment rights—Anderson-
Burdick and the unconstitutional-conditions doctrine. However, we limit our holding to the latter
because the parties agree that we should forego application of Anderson-Burdick to plaintiffs’
claim.4 See Appellant’s Opening Br. at 48 (“LPO does not believe it necessary to apply the
Anderson-Burdick formula here. . . .”); Reply at 28 (“LPO does not believe Anderson-Burdick
needs [to] be used in this case.”); Appellee’s Br. at 49 (“[T]he Court should refuse to apply
Anderson-Burdick.”).
3
In Carney, the Supreme Court concluded that a Democrat-turned-independent did not have standing to
challenge Delaware’s “major party” requirement, which mandated the state’s judges be a member of either of the
two most popular political parties. Carney, 141 S. Ct. at 498–503. The Court reached this conclusion by observing
in part that the plaintiff had not applied to any of 14 judicial openings for which he would have been eligible as a
Democrat between 2012 and 2016, and that his decision to switch his political affiliation from Democrat to
unaffiliated independent “made it less likely that he would become a judge[,]” but more likely that he could
“vindicate his view” that Delaware’s major party requirement was unconstitutional. Id. at 501.
4
In a recent case, we declined to decide which of these frameworks applied to First and Fourteenth
Amendment challenges brought against the criteria for government service on Michigan’s Independent Citizens
Redistricting Commission. Daunt v. Benson, 956 F.3d 396, 406 (6th Cir. 2020). While some may harbor doubts
over the applicability of Anderson-Burdick to such cases because the challenged law neither regulates the
administration of elections nor burdens voting rights, see id. at 422–24, 429–31 (Readler, J. concurring), we leave
that matter for another day when it is properly before the court.
No. 20-3585 Libertarian Party of Ohio, et al. v. Wilhem, et al. Page 7
A.
The unconstitutional-conditions doctrine prevents the government from denying a benefit
on the basis of a person’s constitutionally protected speech or associations. See Perry v.
Sindermann, 408 U.S. 593, 597 (1972). In Perry, the Court explained that the government
may not deny a benefit to a person on a basis that infringes his constitutionally
protected interests—especially, his interest in freedom of speech. For if the
government could deny a benefit to a person because of his constitutionally
protected speech or associations, his exercise of those freedoms would in effect be
penalized and inhibited. This would allow the government to produce a result
which it could not command directly. Such interference with constitutional rights
is impermissible.
Perry, 408 U.S. at 597 (alteration and internal citation omitted). In a trio of cases, the Supreme
Court has employed the unconstitutional conditions doctrine to examine the tension between
governmental patronage practices—hiring and firing based on political affiliation—and the First
Amendment rights of individuals. Those cases warrant further discussion.
First, in Elrod v. Burns, Justice Brennan wrote for a plurality of the Court and held that
patronage dismissals violated the First and Fourteenth Amendments because they amounted to
the government conditioning employment on particular political affiliations, and thus “severely
restrict[ed]” the employees’ right to “political belief and association.” 427 U.S. 347, 372 (1976).
However, the plurality also acknowledged that First Amendment protections were
“not . . . absolute[,]” and that patronage dismissals did not violate the First Amendment in
“policymaking positions.” Id. at 360–61, 367–68. Concurring in the judgment, Justices Stewart
and Blackmun would have decided the case on narrower grounds: “[A] nonpolicymaking,
nonconfidential government employee” could not be discharged solely because of his political
beliefs under Perry. Id. at 375 (Stewart, J., concurring in the judgment).
The Court then built upon Elrod in Branti v. Finkel, 445 U.S. 507 (1980). There, the
issue was whether the dismissal of two assistant public defenders for their political affiliation
violated the First Amendment, or whether the plaintiffs fit within Elrod’s policymaking
exception. Id. at 510–11. The Court clarified that “the ultimate inquiry is not whether the label
‘policymaker’ or ‘confidential’ fits a particular position; rather, the question is whether the hiring
No. 20-3585 Libertarian Party of Ohio, et al. v. Wilhem, et al. Page 8
authority can demonstrate that party affiliation is an appropriate requirement for the effective
performance of the public office involved.” Id. at 518. “As one obvious example,” the Court
explained, “if a State’s election laws require that precincts be supervised by two election judges
of different parties, a Republican judge could be legitimately discharged solely for changing his
party registration.” Id. With this understanding, the Court held that the patronage dismissals of
the plaintiffs violated the First Amendment because “[t]he primary, if not the only, responsibility
of an assistant public defender is to represent individual citizens in controversy with the State.”
Id. at 519.
Finally, in Rutan v. Republican Party of Illinois, the Court considered “whether
promotion, transfer, recall, and hiring decisions involving low-level public employees may be
constitutionally based on party affiliation and support.” 497 U.S. 62, 65 (1990). The case arose
out of a system of patronage instituted by the Governor of Illinois by imposing a state-wide
hiring freeze and then requiring that any exception to the freeze receive his “express
permission.” Id. When determining whether permission should be granted, the governor’s office
looked at whether the applicant voted in his party’s primaries, provided financial or other support
to his party, had joined or promised to work for the party in the future, and whether the applicant
was supported by local party officials. Id. at 66. Moreover, state officials also allegedly used
party affiliation to make decisions about recalling laid-off employees and when selecting
employees for promotions. Id. at 67. The Supreme Court held “that the rule of Elrod and Branti
extends to promotion, transfer, recall, and hiring decisions based on party affiliation.” Id. at 79.
B.
As discussed above, the touchstone of our inquiry 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. However, we do not write on a blank slate;
our precedent fills in many of the gaps for determining whether or not party affiliation is an
appropriate criterion for government employment. Most significantly, we elaborated in
McCloud v. Testa on the types of positions for which it would not violate the First Amendment
to consider party affiliation and set forth four categories of public employment that fall “with
reasonable certainty” within the Elrod-Branti exception:
No. 20-3585 Libertarian Party of Ohio, et al. v. Wilhem, et al. Page 9
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
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.
97 F.3d 1536, 1557 (6th Cir. 1996) (footnotes omitted). Further, the McCloud court instructed
that where there is “any ambiguity” in determining whether a particular position falls within one
of the categories, “it is to be construed in favor of the governmental defendants” at least when
the position is “unclassified or non-merit under state law.” Id. It also provided examples of
positions in each category. Relevant here, we explained that “a gubernatorially-appointed
Democratic economist placed on a revenue forecasting committee consisting by law of two
economists (one Republican and one Democrat) chosen by the state legislature, two economists
of similar party affiliation chosen by the governor, and one economist of any party chosen by the
president of the state’s most prominent university” would fall within Category Four. Id.
More recently, in Peterson v. Dean, we considered whether Tennessee’s county election
administrators were subject to patronage dismissals under the Elrod-Branti exception. 777 F.3d
334, 336 (6th Cir. 2015). Tennessee law requires the State Election Commission to appoint five
election commissioners for each county, with three members being of the majority party and two
members of the minority party. Id. at 338. The county commissioners, in turn, were required to
“appoint an administrator of elections” to serve as the “chief administrative officer of the
commission.” Id. Eight of these county administrators were ousted from their positions
allegedly because of their actual or perceived political affiliation. They then filed suit under
No. 20-3585 Libertarian Party of Ohio, et al. v. Wilhem, et al. Page 10
42 U.S.C. § 1983, claiming that their patronage dismissals violated their First and Fourteenth
Amendment rights. Id. at 340. On appeal, the parties agreed that “the common and controlling
issue was whether the statutory position of county administrator of elections in Tennessee [was]
lawfully subject to patronage dismissal” under Elrod and Branti. Id. at 337.
In concluding the administrators fell within the exception, we started from the premise
that county election commissioners in Tennessee were Category One employees under McCloud
because their positions were statutorily established and vested with discretionary authority to
carry out functions of political concern. See id. at 345. From there, we observed that “[c]ategory
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.” Id. at 345 (quoting McCloud, 97 F.3d at
1557 n.31). Thus election administrators “neatly fit[]” into Category Two because “the position
[was] one to which a significant amount of the total discretionary authority available to category-
one employees ha[d] been delegated.” Id. at 346 (quoting Summe v. Kenton Cty. Clerk’s Office,
604 F.3d 257, 266 (6th Cir. 2010)).
Writing in dissent, Judge Clay disagreed. In his view, the county election commissioners
were not Category One employees because they did not “exercise meaningful discretion on
issues where there is room for principled disagreement on the goals or their implementations.”
777 F.3d at 352 (Clay, J., dissenting) (internal quotation marks omitted). Judge Clay instead
concluded that they were subject to patronage dismissals because their positions fell within
Category Four, given that they were “filled by balancing out political party representation.” Id.
(quoting McCloud, 97 F.3d at 1557). Accordingly, while he concluded that county
administrators could not be discharged for their political affiliation, all three members of the
panel agreed that the county election commissioners were subject to patronage dismissals. Id.
C.
Applying the foregoing precedent to the plaintiffs’ claim, the district court properly
granted summary judgment in favor of defendants because OEC Commissioners fall within
Category Four of the McCloud framework, and Ohio may thus condition employment on the
No. 20-3585 Libertarian Party of Ohio, et al. v. Wilhem, et al. Page 11
OEC on party affiliation. They are akin to the supervisory judges discussed in Branti, 445 U.S at
518, the economists appointed to maintain partisan balance in McCloud, 97 F.3d at 1557, and the
county election commissioners in Peterson, 777 F.3d at 346; id. at 352 (Clay, J., dissenting).
Accordingly, § 3517.152(A)(1) is not an unconstitutional condition on government employment
because it is “appropriate” for Ohio to consider political affiliation to serve its stated interest in
maintaining partisan balance among the members of the OEC. For this reason, § 3517.152(A)(1)
does not violate plaintiffs’ First Amendment rights.
Plaintiffs’ arguments to the contrary are not persuasive. First, they compare
§ 3517.152(A)(1) to laws prohibiting persons from government service based on immutable
characteristics or laws that require a person seeking public employment to profess a certain belief
or disbelief in religion, or laws requiring a person to forswear membership in a “disfavored
political organization” for government employment. The challenged law is similar, in their view,
because it “condition[s] one’s full participation in Ohio’s political community and electoral
machinery on forfeiting her freedom of association.” Therefore, the argument goes, “[b]anning
members of minor parties from office is no more constitutional than banning Jews or
Republicans from office.”
We disagree. Section 3517.152(A)(1) does not single out any ideology, viewpoint, or
protected class. It instead operates such that whichever parties are the two most represented
factions in the Ohio legislature—for now the Republicans and the Democrats, but subject to
change should another party achieve greater electoral success—receive three seats each on the
OEC with one additional seat to a person with no political affiliation. There is no comparison to
be drawn from laws which afford equality of opportunity to all political parties, and those that
expressly prohibit a person from government employment because of a protected characteristic.
Cf. American Party of Texas v. White, 415 U.S. 767, 781 (1974) (holding that it is not invidious
discrimination for a state to grant minor parties official recognition, but deny them the right to
hold primaries even though the main political parties are so entitled); Jenness v. Fortson,
403 U.S. 431, 440 (1971) (holding that Georgia did not violate the First or Fourteenth
Amendment rights of independent candidates or unrecognized political parties by requiring that
they petition for access to the ballot, while recognized parties—who attained twenty percent of
No. 20-3585 Libertarian Party of Ohio, et al. v. Wilhem, et al. Page 12
the vote in a prior election—obtained ballot access by holding a primary election); see also
Werme v. Merrill, 84 F.3d 479, 484–85 (1st Cir. 1996) (“[T]he Libertarian Party has exactly the
same opportunity to qualify as a source of election inspectors and ballot clerks under New
Hampshire law as does any other party. Equality of opportunity exists, and equality of
opportunity—not equality of outcomes—is the linchpin of what the Constitution requires in this
type of situation.”).
Second, the LPO attempts to draw a distinction between “discretionary hiring and firing
decisions” and “statutory categorical disqualifications” because Elrod and the cases that follow
govern only the former and do not bear on the latter. This distinction is not borne out by our
caselaw. Look no further than McCloud or Peterson. In each of those cases, our court clearly
contemplated statutory schemes that would result in “categorical” exclusions to maintain partisan
balance. The touchstone under Elrod and Branti is whether the State of Ohio can demonstrate
that party affiliation is an “appropriate” requirement for the effective performance of the public
office involved. See Branti, 445 U.S. at 518. That remains the standard whether Ohio is
justifying hiring criteria as in Rutan or the discharge of an existing employee like Branti.
We thus reject plaintiffs’ attempt to recast decades of precedent.5
V.
For these reasons, we affirm the judgment of the district court.
5
Plaintiffs also contend that we should follow the Third Circuit’s reasoning from Adams and conclude that
commissioners are not policymakers. Defendants respond that Adams is contrary to our precedent, citing Newman v.
Voinovich, 986 F.2d 159 (6th Cir. 1993). We need not address this purported conflict because the Supreme Court
vacated our sister court’s opinion and remanded with instructions to dismiss the case for lack of jurisdiction.
Carney, 141 S. Ct. at 503.