States Can’t Bar Third Party Members from Public Office
Public service in state government is something that many aspire to. An appointed position of honor and trust can serve as the capstone to a career. But in Ohio, one such position is categorically off limits to a large group of Ohio citizens. The state’s Elections Commission adjudicates potential violations of Ohio election law. The Commission has seven seats, of which six are reserved for three Democrats and three Republicans. The seventh and final seat is reserved for a political independent who is a member of no party. Thus, members of all third parties, such as Greens and Libertarians, are categorically barred from eligibility for an appointment.
Harold Thomas is a member of the Libertarian Party of Ohio and wishes to be considered for a seat on the Elections Commission. But because of Ohio’s law, Thomas would have to resign from the party that most aligns with his beliefs in order to be eligible for consideration. Thomas has sued, along with the Ohio Libertarian Party on behalf of all of its members, arguing that Ohio’s law violates their First Amendment right to associate with their political party without government retribution.
A federal district court and the Sixth Circuit Court of Appeals ruled against Thomas and the LP of Ohio. Both courts applied Supreme Court precedent laying out when it is permissible for an appointer to consider party membership in hiring decisions. But the Supreme Court has never held that a statute can categorically ban members of certain parties from an office.
Now Thomas and the LP of Ohio have asked the Supreme Court to take their case, and Cato has filed an amicus brief supporting that petition. In the brief, the core of which was drafted by UCLA law professor Eugene Volokh, we argue that Ohio’s law is an unjustified abridgement of the First Amendment right of association. Ohio’s law gives public‐minded third party members a coercive and unfair choice—either give up membership in the party that aligns with their conscience, or give up eligibility for an appointment to public office.
To the extent that Ohio has an interest in partisan balancing on the Elections Commission, that interest can be served be ensuring that an equal number of Democrats and Republicans serve on the commission, while leaving other seats open to members of any party. Ohio has instead chosen the most restrictive means of partisan balancing, not the least. The Supreme Court should take this case and make clear that states can’t ban members of third parties from holding a public office.