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
_________________

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.
No. 14-5219 Peterson, et al. v. Dean, et al. Page 11

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.