if corps please this is this case involves issues that have been here many involved the first amendment rights of public employees on the occasion of a change of parties  my clients were administrators of elections a position previously called coordinators of elections and there are the system works like this you have a  general assembly elects the secretary of state the secretary of state then obviously is of the dominant party the secretary of state appoints the state election commissioners the state election commissioners then appoint the county election commissioners they are specifically required in that process to consult with members of the general assembly for that area for that county they then select members of the county election commission based upon party there being three of the majority party into the minority party that body then selects the administrator of elections when the majority change from democrat to republican in future probably not in my lifetime but if it were to switch in the future it would then be the republican appointees who would be entitled to the first movement protection the point here is though that the law has been clearly established the devil is in the details it's in how we apply this clearly established law we go from the supreme court's holding an el rod which is to the effect that there is a presumption of a first amendment violation when a person is dismissed or there is an adverse job action that arises out of a political affiliation or concern that it was a little too stringent and therefore we started trying to determine what exceptions were constitutionally permissible under the brandy  and the defendants as in this case wanted to be a paid paint by numbers category assignment based upon very limited assumptions of what something means particularly the words like confidential i think if you look at all of these cases as both sides have i think what we see is that the closer a position gets to an office that is elected the more likely it is that the mccloud or brandy exception will apply or look like if you're well to say that that cases is that one of it this appears in all ways to be a political kind of thing why else would would the tennessee law say when one party dominates over the other you flip it and you have a majority of the winning party and all the candidates right yes that's true as to the commission itself but not the administrators the administrators are a statutory office we have a whole line a hundred years plus of tennessee supreme court cases holding that position of administrative elections in fact election commissions and cells have ministerial duties only ministerial duties i brought this with me today to this is the a compilation previously published by the secretary of state of tennessee containing all of tennessee's election laws there simply are almost no discretionary functions to be performed and no specific statutory requirement that the administrative elections and here to any particular political party if you look at the mcleod have some discretionary functions i mean there was talk  the briefs about redistricting plans and the administrator makes a recommendation as to county redistricting is that true and administrator can make certain recommendations him do with polling sites and this type of  redistricting i mean after the census you know the state legislature is redistricting in congress is i assume a county commissioners are too right by population so the administrator would make record if the population of the county and therefore there has to be some change of business the county administrator makes a recommendation that that does he or they met a stranger could make those recommendation or does well we've had one recent labor after the twenty ten census and i presume that they well not all counties in tennessee grew my county davidson county has grown substantially i'm sure they most political decisions that the legislature or anybody makes after a sentence after a census is how you're going to redistrict this and you know they're always looking  n that you know the they have elections decided michigan for the supreme court i think just because they fear the michigan supreme court will decide redistricting of the congressional districts that don't come up there and everybody's got an interest there because of what redistricting because it all to believe may be decided by the michigan supreme court so people view that as a very political very discretionary decision different maps about how you redistrict this or that this that it's discretionary it's i mean is i would think that's kind of their best argument that there are kind of political  presentations to the real decision makers so that if you had for example there's discussion of budget what the administrators do is look at the last similar election how many people did we have to have and what was the cost of that they then submit to the county election commission that data then the budget is adopted by that body and then it goes to the county commission itself and the route where the real decision has been made however when you supply information to the general assembly general assembly itself in tennessee establishes the legislative districts it also establishes the congressional districts that's where those real political decisions are made everything else is merely informational and the laws absolutely clear that supplying mere information to a fact finder is to assist the policymaker the county commission district this is the county commission would make a decision for example about council districts or commission or districts depending on whether you have met well who knows that this is an on redistricting the county commission does the davidson county city count what we call the city council makes that decision not the administrator of elections but they require data and so data is supplied but there's no inherently political essence of supplying data there isn't dr mean not if you can drive districts so i'd say you have seven commissioners so you're going to have a majority of one party or another by depending how you put the republicans in one county commission district for the democrats another district i mean i've seen the maps before i mean you can do all sorts of things really just so but what you need if you're going to gerrymander and that's what we're talking about we are which both parties have done but what you're looking at is i need to know how many citizens vote in this precinct that's not an inherently political piece of advice if the administrator did not have within his or her function making a recommendation as to reduce that i might agree with the administrator all all the administrative does is give you statistics but then i would say that's totally ministerial but if actually you draw district after the census that's discretionary and i think that's a political exercise of discretion is not in the administrator's office it cannot be it we do not have democratic elections and republican elections and if we not been a big part of their presentation until today so it's an appropriate question but i don't know that it's up to it i will see if it's in here are court i'm john harris i represent the cap county plaintiffs which are defendants which are three of the election commissioners with me today are robbing plea who represents their weekly county defendants jeffrey ward who represents hawkins county and john schwab who represents the election commissioners from canon henry jefferson loud and rea counties there's a total of eight counties involved today with over twenty individually named republican election commissioners how are you going to share your time for argument we have agreed that i would represent make the argument for all counties unless the court has a specific question concerning one of the individual county parties and then i would defer to that particular attorney but i'll be handling the entire fifteen aren't or three mission i would like first off because it has been brought up by the court to address the question about apportionment and redistricting judge clay you asked the question was the rule about involvement in redistricting and apportionment in the law as of the time in question if you look at tennessee code annotated to twelve to zero on section eight thirteen it was in the code prior to two thousand and nine on the dating question that specific code sections say is that one of the duties one of the statutory duties of the administrator of elections is to assist and planning and implementing a plan of apportionment or reapportionment so they are not just merely providing data their have direct input in this discretion sixteen which is the duties of the election commission itself and section a seven of that code states that and this is very odd in the way it's worded but it states that the election commission shout your honor it does now there's a way it is it practice or is that the way just says that in practice my experience was i represent a couple of these counties day to day the administrators do the work to interview select and and propose to the poll worker is going to be those recommendations are presented to the county election commission in typically just ratified by it but it is in fact the administrator who picks the poll workers depicts the locations where you will have early shall assess the administrator in making those decisions so it's almost the inverse of what you would normally see but the law in tennessee as of two thousand and nine was clear in two statutory respects that the administrator's elections was directly involved with apportionment reapportionment and drawing precinct lines which would district lines within the county now although i don't believe this case is cited in any of the briefs it may be the u s supreme court cummings for twelve us seven thirty five makes two comments that hit right on the very question that judge griffin was trying to make and that is that politics and political considerations are inseparable from district  apportionment the court almost also commented that the reality is that district thing inevitably has and is intended to have substantial political consequences so not only are the statutory duties that these positions have specifically encompassing district in redistricting in apportionment but the u s supreme court clearly say is that it's well known that those activities have significant political impact because as the court noted in gaffney even seasoned legislators would have a hard time winning if those districts were drawn in such a fashion that they no longer represented the majority of the people of the same party precinct said dems they have to have there is represent substantially segments of the population after one man one vote yes it's pressurizing county commissioners two doesn't it does your honor exactly and so they have to have substantially equal balance i'm with you on redistricting i think that's political terribly discretionary but where you put polling places to say that you could do that for political reasons too seems to me would probably be unconstitutional it may not it sounds like it could what happens in tennessee and another way the statutes are written by statute they're only required to have one early voting was required to have one early voting location and that is the election commission offices we just had a wild case come up here reversed by the supreme court the issue there was a constitutional violation here to say that ok these are fairly political decisions whether you're going to have early voting or not were the location stuff i mean there are constitutional limitations there are and i think and i think the point is that the administrator of the elections with the with the consent and advice of the election commission they get to pick where the early polling early voting locations are but it has to be unconstitutional it was not a constitutional case so there's discretion within the constitution there is they could have five they could have one there's no minimum requirement except they have to have one they can have more and they can have more early voting days than the minimum threshold set forth in the statute but those are all discretionary matters which either fall within the duties statutor enumerated to the administrator of elections or they are matters in which the administrator of the elections based upon the statue or framework has significant input in vice to the county election commission now i would like to point out because if you look at the statutory framework and this case was almost entirely decided by the district judge based on the statutory framework he makes almost no references to facts other than statutory content if you look at the tennessee system party even holds a majority control of county election commissions in counties in which the minority party actually holds the legislative seats so even in those counties they dominate and county election commissions serve two year terms under tennessee law one of the first things they are required to do upon their appointment under two twelve one sixteen they want is to appoint an administrator there are some statutory elements on the two twelve one sixteen as to what the job qualifications of an administrator are but omitted from that list is any reference as to whether or not political party affiliation can or cannot be considered which is a fact that the courts sometimes pick up on blackburn typically relies in making that statement on a case called city of memphis versus shelby county election commission and that's a case in which the shelby county election commission took it upon itself to refuse to place an initiative on a ballot because the county election commission determined that they thought it was unconstitutional near for shouldn't be on the ballot and the tennessee supreme court in that case really was deciding a separation of powers issue as to whether or not an administrative agency like an election commission has the authority to make a determination that really is the job of the judiciary whether or not a ballot measure is constitutional or not and in doing that the tennessee supreme court did in fact use the terminology that they had basically the election commissions  ministerial in one thousand but that's not the only tennessee supreme court case which talks about this talk and  on that same thing the tennessee supreme court in a case called gaffney looked at this issue and here's what i'm sorry not ga y hammond versus wimberly one ninety six south with second five sixty one and here's what came up in the hammond case the court was looking at the duties of the election commission specifically and the court talked about the nuance between what's a ministerial duty it wants a discretionary duty and the supreme court of tennessee said mystery all duties are those duties which are defied with judgement are there for discretionary and then the court says the yes we are of the opinion that some of the duties prescribed very end of the commissioner of elections are ministerial such as fixing the date of the election or publication of the notice accept or there are many duties however that are discretionary so we disagree with the assertion that the tennessee supreme court has absolutely resolved question for purposes of this case as to whether or not these statutory duties are all purely ministerial clearly is just griffin has pointed out when you come to redistricting reapportionment things of that nature it simply is not the cats those involve political factors and they involve some  call on discretion the people implementing those tasks now the defendants in this case let me ask you this would it why isn't the why would the case to policy questions and how much time is spent on budget and personal matters that might not be discretionary and kid just because of the way that position is labeled and the decision be made at this stage of the litigation what would you say about that you are i believe that because of the the the degree of the numeration within the statute of the duties that i guess the decision can be made based upon this court's existing case law re versus davis sunni versus canton county test though blair cope those cases all say when you look at certain types numerated activities like budgeting making employment decisions running all the day to day activities those cases consistently say that those are inherently political activities requiring discretion in the implementation of the law and therefore i guess you can decide at this point without having to send this back to the trial court for the findings of fact i also point out that if you look at for example the line decision when you talk about the category one analysis under test macleod versus test a for example lying teaches us that you look at the inherent duties of the office not necessarily the duties of the office as performed by either the prior office holder or what their testimony would be as to how they fulfilled the job you look at the inherent duties which the statutory framework gives us and you also look at what the position might include and once you have the new employer employees so for example it's not really a test of what was actually happening at the time or the testimony makes that big of a difference it's more so a question of these inherent duties that were given when you look particularly rain versus davis and sue me versus kate and counting the courts have already looked at many of these categories budgeting employees taking care of the public records running elections all of those are specifically addressed and re assume mean if it were fact pacific i suppose there might be some differences there are you saying we ought to look at what the statute requires them to do what you have already in the statute as opposed to what they actually did issue  has to be broadly construed to presumptively include those positions so looking at just the statutory enumeration of duties and applying the rice canon which macleod incorporates you come to the conclusion that we really don't need to have detail fact finding on what these individual plaintiffs did when they were in control because lying tells us that's not controlling we're looking at the inherent duties of the office as it might be exploited by another employer down the road particular when there's a change in political control thank you for your time is there no of the questions thank you different assignments we have some counties with five thousand people we have other counties like davidson with over six hundred thousand people the deities tend in the staffs and so forth tend to be very different in each of these cases we have affidavits from these plaintiffs stating what their duties were in denying that they had any discretionary duty at all in connection with those things being raised in defense particularly the budgetary matter that was the focus of it would you argue that possible that some point the i think in this case it's inevitable the there are three of these plaintiffs about whom there is essentially no question about whether this was a political decision well there are two that why or why are you it's precisely the opposite there are three one of these weekly county for example they call her and said they had no choice they apologized praised her for her good work and said this is just politics so there aren't any issues there there are others where that's it's inherently political if the under the well we've lost here in this discussion your honor respectfully is the mcleod categories to is positions to which a significant portion of the total discretionary a available to category one position holders has been delegated that's what mcleod's is the fact that an administrator may assist the actual decision maker doesn't mean that a significant portion of the total authorit been delegated which is what's required by macleod category three has to do with confidential advisors remember we have three presently we have three republicans and two democrats there was a change of one position because of this there is no confidential communication it is we have three republicans to democrats and one on the county election commission and they're the persons who hire the administrator and so we can which each county they then cannot have any confidential communications that violates our open meetings laws and our open records laws if they can't be confidential in addition to that they are reporting to a committee that has both parties represented southern not making political suggestions in a confidential basis to anyone nor can they wofully do that it is not a significant portion of anything mr harris says is quoted accurately from one case making some distinctions but i think he would have to concede that we have a century of cases out of the tennessee supreme court saying that these duties are essentially ministerial if these duties are essentially the stereo merely going behind their particular duties and finding one as your author did finding one particular duty that arguably involves discretion of a political nature does not transform that office into a political office where the where association with a particular party is necessary to the efficient performance of the job and that's the requirement which category the district court put these jobs have over two two and three