The state attorney general handed down an opinion April 8 that a county administrator of elections cannot be replaced solely on the basis of political party affiliation.

Across the state this year, most election administrators are being replaced as the election commissions now have a majority of Republican members, in line with the fact the majority party in the state legislature is Republican.

According to Robert Cooper, Attorney General for the state, dismissing an election administrator based on party affiliation could be deemed a violation of the First and Fourteenth amendments of the U.S. Constitution. However, he said, political affiliation could be an appropriate requirement if a county election commission can demonstrate that it has delegated to the administrator broad discretionary policymaking authority regarding budgetary matters and/or the implementation of its goals and programs

Cooper noted that the administrator of elections, appointed by the election commission, is the chief administrative officer of the commission and is responsible for the daily operations of the commission office and the execution of all elections. “In evaluating a prospective appointee, the county election commission is to consider the knowledge and experience of such prospective appointee in the following areas: administrative, managerial, instructional, communication, budgetary, purchasing, promotional, legal and general office skills and other related skills necessary to fulfill the statutory requirements of administrator.”

He noted the U.S. Supreme Court has held that the First and Fourteenth Amendments to the U.S. Constitution protect state and local government employees from discharge or other significant adverse employment actions taken because of their political affiliations. He cited a case that ruled policymaking positions can be replaced but non-policymaking individuals usually have only limited responsibilities and are not in a position to thwart the goals of the in-party. However, he said, no clear line can be drawn between policymaking and non-policymaking positions, as the person’s responsibilities are critical. “An employee with responsibilities that are not well-defined or are of broad scope more likely functions in a policymaking position.”

Another case concluded that the key is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.

The Supreme Court has rejected the argument that, because a public employee serves at the pleasure of the public employer and can be dismissed for good cause, bad cause, or no cause at all, such employee can be dismissed because of his or her political affiliation.

Cooper noted that the Sixth Circuit Court of Appeals has not yet had the opportunity to determine whether political party affiliation is required for the position of election administrator, but it has established a system to help courts determine whether political affiliation is an appropriate element of personnel decisions.

He said there was a case in Virginia where the appeals court ruled that county election boards did not prove that party affiliation was a requirement for the position of registrar. Cooper said Tennessee’s law is similar to the one in Virginia.