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Elrod v. Burns 427 U.S. 347 (1976) is a U.S. Supreme Court decision regarding political speech of public employees. 1 The court ruled in that federal employees may be active members in a political party, but cannot allow patronage to be a deciding factor in work related decisions. The court upheld the decision by the 7th Circuit Court of Appeals ruling in favor of Burns. 5

Background
Richard J. Elrod was elected Cook County, Ill. Sheriff. As a democrat, he dismissed four non-civil service employees. John Burns and the other dismissed employees claimed it was on the grounds that they were members of the Republican Party. The previous sheriff, a republican, had hired them all. Burns and other former employees claimed discrimination due to their affiliation, or lack of affiliation, to a particular political party.

Constitutional Question
The constitutional question is if the firing of Burns and the other respondents was in violation of the Hatch Act and within the jurisdiction of first amendment accepted free speech by a public employee. 1 The court was deciding whether these statues should apply to public, non-federal employees. 5

Decision
Justice Brennan wrote the decision affirming the 7th Circuit Court Decision. The opinion stated that the republican employees were denied a civil liberty by loosing jobs due to political affiliation. 1

“Patronage dismissals severely restrict political belief and association, which constitute the core of those activities protected by the First Amendment, and government may not, without seriously inhibiting First Amendment rights, force a public employee to relinquish his right to political association as the price of holding a public job” – Justice Brennan1

Justice Stewart wrote a concurring decision, highlighting that nonpolicymaking officials cannot be fired on the basis of political affiliation or belief.

The decision upheld the belief that the ‘spoils system’ is unconstitutional through first amendment freedoms.6The Supreme Court protected the rights of employees by giving further allowance of free speech by public employees.

Dissent
Justice Powell wrote a dissent claiming that half of the employees in the Cook County, Ill. Sheriff’s Office are merit based and are protected from being fired by a new administration. The other half of employees, which Burns was a part of, were hired based on principles decided by the previous sheriff, a Republican. The non-merit employees were hired on basis of patronage and there should be able to be fired on the basis of patronage. The dissent claims that partisan politics at the state level are necessary for the political system to evolve. 1

“The Court holds unconstitutional a practice as old as the Republic, a practice which has contributed significantly to the democratization of American politics.” – Justice Powell 1

Justice Powell goes on to cite the removal of political opponents from roles by founding fathers, such as John Adams, Thomas Jefferson and their successors.

The Hatch Act
Congress passed the Hatch Act, or the Act to Prevent Pernicious Political Activities, in 1939. It prevents many federal employees from participating in certain partisan activities. 4 Specifically it prohibits campaign activities by federal employees. In an earlier Supreme Court ruling Justices Marshall and Brennen signed on to an opinion in 1973 stating.

"It is no concern of government what an employee does in his or her spare time, whether religion, recreation, social work or politics is his hobby, unless what he or she does impairs efficiency or other facets of the merits of his job." – Mr. Justice Douglas 3

The court had deemed this as a balance between not restricting speech and making sure that public employees do not over step the boundaries of the office due to political affiliation. The 14th Amendment states that all constitutional rights and laws are to be enforced at the state level.

Subsequent Cases
Heffernan v. City of Paterson 587 U.S. ___ (2016) was a similar case that took into consideration partisan acts but a member of the Paterson, NJ police force. Jeffery Heffernan was seen carrying a campaign sign to a sick parent. As a result of being seen with the sign, he was demoted for public engagement of political activities. The court overturned that decision claiming that he was acting under protected speech. 7

In Rutan v. Republican Party of Illinois 497 U.S. 62 (1990), the state of Illinois put a hiring freeze on public employees without permission from the governor. The new employees being hired were all members of the Republican Party. The court decided in favor of the petitioner reiterating the Elrod v. Burns ruling that nonpolicymaking government employees cannot be hired or fired based off political patronage.

Following the Elrod v. Burns decision, the court has stayed with the sentiment that the free speech rights of government employees is protected when they are in nonpolicymaking or traditionally partisan roles.9