Academic journal article Harvard Law Review , Vol. 126, No. 7
Employees generally do not enjoy constitutional protection against private employers' infringements of employees' freedom of speech or political association, but they are protected against infringements of those rights by public employers. (1) In Elrod v. Burns (2) and Branti v. Finkel, (3) the Supreme Court established that the First Amendment protects government employees from termination for their failure "to support a political party or its candidates, unless political affiliation is a reasonably appropriate requirement for the job in question." (4) Recently, in Underwood v. Harkins, (5) the Eleventh Circuit held that under the Elrod-Branti doctrine, an elected public official does not violate the First Amendment by discharging an immediate subordinate for running against the official in an election if the immediate subordinate and the official have the same duties under local or state law. (6) By relying on a subordinate's formal job duties, the court's rule gives undue weight to the government's interest in political loyalty in cases, such as Underwood, in which the subordinate does not in fact perform the duties entrusted to her elected superior. Underwood therefore inadequately protects the First Amendment interests of public employees running for office.
Sarah Jane Underwood and Rita Harkins were coworkers as superior court deputy clerks in Lumpkin County, Georgia. (7) Georgia law provides that the "[p]owers and duties of deputy clerks shall be the same as those of [superior court] clerks," (8) but in practice, the role of the deputies is administrative. (9) After the sitting clerk announced he would not seek reelection, Harkins, Underwood, and two others ran for the Republican nomination for clerk. (10) The primary contest was "'not contentious' and focused on the candidates' experience." (11) Harkins won the nomination and the uncontested general election. (12) Her first official act as clerk was to terminate Underwood's--and only Underwood's--employment. (13) Underwood sued Harkins under 42 U.S.C. [section] 1983, alleging that the termination violated Underwood's First Amendment rights to free association and participation in the political process. (14) For purposes of summary judgment, Harkins admitted to firing Underwood because she ran in the Republican primary. (15)
The federal court in the Northern District of Georgia granted the defendant's motion for summary judgment. (16) Applying the Elrod-Branti doctrine, (17) Judge Story found that the government employer's interests in loyalty and in avoiding potential office disruption outweighed Underwood's First Amendment interest in political candidacy. (18)
The Eleventh Circuit affirmed. (19) Writing for a divided panel, Judge Jordan (20) noted that "First Amendment jurisprudence in the area of firings based on political affiliation or candidacy is, at best, muddled," and stated that the court sought to "harmonize [its] existing cases and enunciate a workable and relatively predictable standard." (21) Judge Jordan then reviewed the Supreme Court's Elrod-Branti doctrine and its past applications in the Eleventh Circuit. (22) The Eleventh Circuit applies Elrod-Branti using a "least restrictive means test which balances [F]irst [A]mendment rights of [employees] and the need for efficient and effective delivery of public services." (23) In Randall v. Scott, (24) the Eleventh Circuit extended Elrod-Branti to cover dismissals based on political candidacy. (25) While Randall established that a public employee running for office has "some First Amendment protection," the Underwood court noted that Randall did not determine the extent of that protection because the termination at issue was motivated by personal reasons and furthered no governmental interest. (26)
After considering Supreme Court and Eleventh Circuit precedent, Judge Jordan announced a clear rule: "An immediate subordinate who has the same statutory powers and duties as the elected official for whom she works is the type of confidential employee who can be terminated under Elrod, Branti, and their progeny . …