By Ben Solis
Gongwer News Service
The Michigan Supreme Court’s liberal majority was the sole decider in one-third of cases before the high court bench in the 2023-24 term, and with its conservative chief justice a deciding factor in nearly all of those cases.
A Gongwer News Service analysis of the court’s latest term, which ended July 31, shows that 17 of nearly 50 cases had a liberal majority tilt, even if one of the conservative minority’s justices joined the majority. More than half of the nearly 50 rulings the high court issued in the latest term were not unanimous, with many of them resulting in 4-3 or 5-2 splits.
Chief Justice Elizabeth Clement, a conservative justice known to be a reliable swing vote, joined the liberal justices against her GOP-nominated colleagues in 12 of nearly 50 decisions. No other justice quite played the wildcard like Clement did during the term.
Meanwhile, Justice Brian Zahra and Justice David Viviano nearly tied each other in the number of times they dissented in cases, with many of them being split decisions against their liberal colleagues or the majority plus Clement.
Only 13 decisions saw the bench rule unanimously, but four of those cases were among the most consequential of the term, showing the bench’s ability to forge consensus in some of its most pressing matters.
The term also saw the bench rule on uniquely precedential cases, much like the high court’s decision in the “adopt and amend” case, its non-decision in the legal fight to disqualify former President Donald Trump from the November ballot and its decision on the retroactivity of sexual assault claim limitations in laws born from the Larry Nassar scandal.
Gongwer analyzed more than 50 opinions and orders issued by the high court between November 2023 and August. The analysis included a handful of off-calendar cases that also made waves after the term ended, including the high court’s decision in a controversy over poll watcher guidance issued by Secretary of State Jocelyn Benson in 2022.
For the cases that were heard and decided during the term, five had 4-3 decisions, 14 saw the court split 5-2 and just seven saw a justice write alone in dissent against a nearly unanimous majority. In those cases where just one justice dissented, Viviano offered the lone dissent in three, Zahra and Justice Elizabeth Welch in two, and Justice Richard Bernstein in one.
As some court watchers might expect, Clement stuck closely to her reputation as an independent-minded jurist and swung her vote in favor of the liberal majority in more than 25 percent of the cases before the court.
In all, Welch authored more opinions than any of her colleagues during the term with seven opinions, one of them being Mothering Justice v. Attorney General (MSC Docket No. 165325), likely the most consequential case of the term. The landmark 4-3 decision held that the Legislature cannot adopt and then amend voter-initiated laws in the same session.
The ruling found that the scheme was unconstitutional and struck at the spirit of direct democracy. The court thus reinstated the two voter-initiated laws – PA 337 of 2018 and PA 338 of 2018. The high court ordered the laws to go into effect on February 21, 2025, and invalidated the Legislature’s amended versions of the laws, PA 368 of 2018 and PA 369 of 2018.
One of the laws called for raising Michigan’s minimum wage to $12 per hour by 2022 and bringing the tipped minimum wage up to the regular minimum wage. The other mandated paid sick time for workers.
Welch also wrote the opinion for the bench’s unanimous decision in TPOAM v. Renner (MSC Docket No. 162601), which held that public sector unions requiring nonmember employees to pay a fee for representation for access to grievance representation are violating their duty of fair representation. Welch further held that the landmark U.S. Supreme Court ruling in Janus v. AFSCME, which prohibited mandatory union membership for public sector workers represented under a collective bargaining agreement, did not expressly authorize pay-for-service policies for non-members.
Justice Megan Cavanagh wrote five of the term’s decisions, including the Nassar fallout related McLain v. Roman Catholic Diocese of Lansing (MSC Docket No. 165741) and Miller v. Department of Corrections (MSC Docket No. 164862), which allowed for some Elliott-Larsen Civil Rights Act retaliation claims to be filed by third-party litigants. McLain was precedential because it held the statutes of limitations on sexual assault cases extended after the Nassar scandal were not retroactive. Both of those decisions were unanimous but with Cavanagh taking the pen to write the holding.
Clement and Bernstein tied for four decisions written during the term, with Clement writing the confusing but no less consequential finding in Michigan Farm Bureau v. Department of Environment, Great Lakes and Energy (MSC Docket No. 165166). The chief justice created a new four-part standard to determine if an agency condition is indeed a rule within the bounds of the Administrative Procedures Act, drawing the ire of dissenting justices.
In a 5-2 holding, Clement ruled that a set of 2020 general permit conditions regarding waste spreading at concentrated animal feeding operations – under the auspices of the National Pollutant Discharge Elimination System – lacked the force and effect of law, and that EGLE lacked the power to issue rules relating to that system.
That meant that the conditions in question were not considered rules at all, dismissing the arguments of the plaintiffs, who asserted that they were in fact rules that should have gone through the APA rulemaking process.
Bernstein’s most consequential ruling came in People v. Butka (MSC Docket No. 164598). The opinion held that, in cases dealing with decisions to set aside convictions based on a defendant’s danger to society, a trial court’s determination cannot solely rest on victim impact statements.
Viviano, Zahra and Justice Kyra Harris Bolden – serving in her first full term since being appointed by Governor Gretchen Whitmer at the tail end of 2022 – each authored three opinions.
Viviano’s mark on the term will also be his last on the court, as the justice announced his retirement earlier this year.
Among those written by Viviano, the most notable was his opinion in Doe v. Alpena Public School District (MSC Docket No. 165441). Viviano in a 6-1 decision held ELCRA does not provide for a vicarious liability cause in lawsuits on hostile educational environment claims that arise from student-on-student sexual harassment. The ruling partially reversed and vacated the Court of Appeals’ holding and remanded the case so the appellate panel could determine whether the Alpena Circuit Court correctly granted summary disposition to the plaintiff.
The panel was also ordered to decide if the plaintiff can bring a lawsuit on a direct theory of hostile educational environment under ELCRA, at all.
Zahra’s key ruling in the latest term was Bradley v. Frye-Chaiken (MSC Docket Nos. 164900-1), another 6-1 ruling that held court rules and statute do not require all attorneys who represent a sanctioned client in a single civil lawsuit to be held jointly responsible for frivolous conduct, let alone jointly or severally responsible for that conduct.
Although Bolden did not write one of the term’s more consequential decisions, she did offer the off-calendar opinion in O’Halloran v. Benson and DeVisser v. Benson (MSC Docket Nos. 166424-25). Bolden and her liberal colleagues in a 4-3 decision held that Benson had authority under Michigan Election Law to make changes to 2022 poll watcher guidance challenged by state Republicans, and they didn’t have to be promulgated as rules through the Administrative Procedures Act.
That meant the court challenged components of poll watcher guidance published by the Bureau of Elections in 2022 were lawful, with some caveats.
At least 14 were either issued as unsigned orders or as per curiam decisions written by the entire bench.
—————
Zahra, Viviano duel for first in dissent
With Clement often joining the liberal majority to decide about 25 percent of the term’s caseload, Zahra and Viviano often stood alone in dissenting to nearly half the term’s decisions.
The two nearly tied for the number dissents issued during the term, with Zahra inching out Viviano with 12 dissenting opinions to the latter’s 11 dissenting opinions.
Zahra issued full-throated dissents to the Mothering Justice holding, as well as the court’s decision in People v. Lemons (MSC Docket No. 163939).
On the high court’s decision in the adopt and amend case, Clement and Zahra would have held that the scheme was permissible, but it was the latter who threw heavy punches at Welch’s majority opinion.
“Despite the extensive authority of the Legislature to enact statutes in the public interest absent narrow constitutional limitations, despite the complete lack of constitutional language preventing the Legislature from amending an adopted initiative, despite the extensive constitutional record supporting the Legislature’s ‘full control’ over adopted initiatives, and despite the total absence of caselaw limiting legislative prerogatives when the text of Article II, Section 9 is otherwise silent, the Court declares amendments to the Improved Workforce Opportunity Wage Act and the Earned Sick Time Act unconstitutional,” Zahra wrote. “In so doing, it does not hold that adopt-and-amend is unconstitutional; it cannot so hold given the text of the Michigan Constitution and considering the effective functioning of a constitutional system.”
Instead, Zahra said, the majority superimposed a new requirement on the Constitution and abrogated “with precision” the legislation enacted in 2018. He also called the opinion a “misinterpretation” and an “erroneous decision on the merits,” as the court was now left unable to sever unconstitutional provisions.
Lemons, which granted a new trial in a shaken baby case, saw Zahra accuse the majority of unjustifiable conclusions.
“There simply is no basis in fact or law to overturn defendant’s murder conviction, which is supported by an extensive body of medical and record evidence,” Zahra wrote. “The result in this case is an injustice to the family of the victim and society at large who have accepted and relied upon a valid criminal conviction for almost 20 years. It also is a disservice to Michigan’s criminal justice system, which necessarily relies upon finality after appellate review to effectively function and protect the public.”
Zahra added that, “respect for society’s judgment of guilt, expressed in the form of a criminal conviction, and the attendant significance of personal accountability, rehabilitation, and reconciliation, will be increasingly substituted in the state of Michigan with denial of responsibility and the hope of perpetual litigation. That is not what our law commands.”
Viviano, for his part, eviscerated the majority holdings in Michigan Farm Bureau and Carter v. DTN Management Company (MSC Docket No. 165425).
The retiring justice in Michigan Farm Bureau expressed deep concerns with Clement’s opinion and called it “unfounded.” At one point he declared himself “dumbfounded” by Clement’s reasoning.
“Under NREPA, the APA, and our caselaw interpreting those statutes, it is clear that the 2020 GP is a ‘rule’ that may be challenged in a pre-enforcement declaratory-judgment action under MCL 24.264,” Viviano wrote.
“The majority’s attempt to label it as something else is unfounded and not persuasive.”
In another section, Viviano said that “the confusion and contradictions in the new legal regime created by the majority opinion will have to be sorted out in this case and others for years to come.”
“Given that historically over 92 percent of CAFOs have been covered by a general permit, the majority’s erroneous decision will surely be to the financial detriment of CAFOs across the state, which will now be required to engage in an uncertain, laborious, and litigious individual permitting process,” he added. “Indeed, the majority opinion sentences CAFOs, which cannot operate without a permit, to perpetual permitting litigation – including the litigation that will be necessary to parse the majority’s convoluted and confusing opinion.”
He also warned the ruling could lead to agencies without rulemaking authority in a subject area devising regulations that look and act like rules but are called something else to avoid the APA.
In Carter, which held administrative orders delaying lower court cases during the COVID-19 pandemic were constitutional, Viviano wrote that Bolden’s majority opinion broadly expanded the bench’s authority beyond the Constitution’s grant, “and tramples over separation-of-powers principles.”
“I disagree with the majority and the Court of Appeals that our administrative orders extending the deadline for initial filing of pleadings are within our authority to regulate practice and procedure or our authority to assume superintending control over state courts,” he wrote. “Rather, our attempt to extend such deadlines encroached upon the Legislature’s authority to create and amend substantive law. As a result, the administrative orders violated the separation of powers and were unconstitutional. The majority improperly elevates form over substance by mischaracterizing our orders as merely affecting the computation of days under MCR 1.108(1).”
Although Welch, Cavanagh and Clement dissented in a number of cases, it was Welch who wrote alone in dissent when the high court decided to not hear the appeal in the Trump ballot case, LaBrant v. Benson (MSC Docket No. 166470).
The high court in an unsigned order denied leave to overturn a Court of Claims holding that the question of Trump’s eligibility was a political one and not for the courts to decide. The Court of Appeals affirmed in a published opinion, setting up a potential battle before the high court.
Welch wanted the court to reach a decision on the merits of the question instead of punting considering the significance of the question. Still, she would have upheld the Court of Appeals’ ruling that the secretary of state is not required to determine eligibility of presidential candidates to appear on the primary ballot.
“The secretary of state is not legally required to confirm the eligibility of potential presidential primary candidates. She lacks the legal authority to remove a legally ineligible candidate from the ballot once their name has been put forward by a political party in compliance with the statutes governing primary elections,” Welch wrote. “I would affirm the Court of Appeals’ ruling on this issue, which still allows appellants to renew their legal efforts as to the Michigan general election later in 2024 should Trump become the Republican nominee for president of the United States or seek such office as an independent candidate.”
That said, Welch believed the court should have heard the appeal and made a ruling on the merits of the appellants’ arguments.
“The appellants argue that because the state has delegated to political parties the role of selecting primary candidates, this makes the political parties limited purpose state actors subject to the 14th Amendment of the U.S. Constitution,” Welch wrote. “On the basis of these cases, appellants argue that the political parties are state actors for purposes of putting forward candidates for the presidential primary, and thus, the political parties are subject to the U.S. Constitution. If this premise is true, then political parties might have a constitutional obligation to ensure that proposed presidential primary candidates are constitutionally eligible to hold the office of President before submitting their names to the secretary of state for inclusion on the primary ballot.”
Gongwer News Service
The Michigan Supreme Court’s liberal majority was the sole decider in one-third of cases before the high court bench in the 2023-24 term, and with its conservative chief justice a deciding factor in nearly all of those cases.
A Gongwer News Service analysis of the court’s latest term, which ended July 31, shows that 17 of nearly 50 cases had a liberal majority tilt, even if one of the conservative minority’s justices joined the majority. More than half of the nearly 50 rulings the high court issued in the latest term were not unanimous, with many of them resulting in 4-3 or 5-2 splits.
Chief Justice Elizabeth Clement, a conservative justice known to be a reliable swing vote, joined the liberal justices against her GOP-nominated colleagues in 12 of nearly 50 decisions. No other justice quite played the wildcard like Clement did during the term.
Meanwhile, Justice Brian Zahra and Justice David Viviano nearly tied each other in the number of times they dissented in cases, with many of them being split decisions against their liberal colleagues or the majority plus Clement.
Only 13 decisions saw the bench rule unanimously, but four of those cases were among the most consequential of the term, showing the bench’s ability to forge consensus in some of its most pressing matters.
The term also saw the bench rule on uniquely precedential cases, much like the high court’s decision in the “adopt and amend” case, its non-decision in the legal fight to disqualify former President Donald Trump from the November ballot and its decision on the retroactivity of sexual assault claim limitations in laws born from the Larry Nassar scandal.
Gongwer analyzed more than 50 opinions and orders issued by the high court between November 2023 and August. The analysis included a handful of off-calendar cases that also made waves after the term ended, including the high court’s decision in a controversy over poll watcher guidance issued by Secretary of State Jocelyn Benson in 2022.
For the cases that were heard and decided during the term, five had 4-3 decisions, 14 saw the court split 5-2 and just seven saw a justice write alone in dissent against a nearly unanimous majority. In those cases where just one justice dissented, Viviano offered the lone dissent in three, Zahra and Justice Elizabeth Welch in two, and Justice Richard Bernstein in one.
As some court watchers might expect, Clement stuck closely to her reputation as an independent-minded jurist and swung her vote in favor of the liberal majority in more than 25 percent of the cases before the court.
In all, Welch authored more opinions than any of her colleagues during the term with seven opinions, one of them being Mothering Justice v. Attorney General (MSC Docket No. 165325), likely the most consequential case of the term. The landmark 4-3 decision held that the Legislature cannot adopt and then amend voter-initiated laws in the same session.
The ruling found that the scheme was unconstitutional and struck at the spirit of direct democracy. The court thus reinstated the two voter-initiated laws – PA 337 of 2018 and PA 338 of 2018. The high court ordered the laws to go into effect on February 21, 2025, and invalidated the Legislature’s amended versions of the laws, PA 368 of 2018 and PA 369 of 2018.
One of the laws called for raising Michigan’s minimum wage to $12 per hour by 2022 and bringing the tipped minimum wage up to the regular minimum wage. The other mandated paid sick time for workers.
Welch also wrote the opinion for the bench’s unanimous decision in TPOAM v. Renner (MSC Docket No. 162601), which held that public sector unions requiring nonmember employees to pay a fee for representation for access to grievance representation are violating their duty of fair representation. Welch further held that the landmark U.S. Supreme Court ruling in Janus v. AFSCME, which prohibited mandatory union membership for public sector workers represented under a collective bargaining agreement, did not expressly authorize pay-for-service policies for non-members.
Justice Megan Cavanagh wrote five of the term’s decisions, including the Nassar fallout related McLain v. Roman Catholic Diocese of Lansing (MSC Docket No. 165741) and Miller v. Department of Corrections (MSC Docket No. 164862), which allowed for some Elliott-Larsen Civil Rights Act retaliation claims to be filed by third-party litigants. McLain was precedential because it held the statutes of limitations on sexual assault cases extended after the Nassar scandal were not retroactive. Both of those decisions were unanimous but with Cavanagh taking the pen to write the holding.
Clement and Bernstein tied for four decisions written during the term, with Clement writing the confusing but no less consequential finding in Michigan Farm Bureau v. Department of Environment, Great Lakes and Energy (MSC Docket No. 165166). The chief justice created a new four-part standard to determine if an agency condition is indeed a rule within the bounds of the Administrative Procedures Act, drawing the ire of dissenting justices.
In a 5-2 holding, Clement ruled that a set of 2020 general permit conditions regarding waste spreading at concentrated animal feeding operations – under the auspices of the National Pollutant Discharge Elimination System – lacked the force and effect of law, and that EGLE lacked the power to issue rules relating to that system.
That meant that the conditions in question were not considered rules at all, dismissing the arguments of the plaintiffs, who asserted that they were in fact rules that should have gone through the APA rulemaking process.
Bernstein’s most consequential ruling came in People v. Butka (MSC Docket No. 164598). The opinion held that, in cases dealing with decisions to set aside convictions based on a defendant’s danger to society, a trial court’s determination cannot solely rest on victim impact statements.
Viviano, Zahra and Justice Kyra Harris Bolden – serving in her first full term since being appointed by Governor Gretchen Whitmer at the tail end of 2022 – each authored three opinions.
Viviano’s mark on the term will also be his last on the court, as the justice announced his retirement earlier this year.
Among those written by Viviano, the most notable was his opinion in Doe v. Alpena Public School District (MSC Docket No. 165441). Viviano in a 6-1 decision held ELCRA does not provide for a vicarious liability cause in lawsuits on hostile educational environment claims that arise from student-on-student sexual harassment. The ruling partially reversed and vacated the Court of Appeals’ holding and remanded the case so the appellate panel could determine whether the Alpena Circuit Court correctly granted summary disposition to the plaintiff.
The panel was also ordered to decide if the plaintiff can bring a lawsuit on a direct theory of hostile educational environment under ELCRA, at all.
Zahra’s key ruling in the latest term was Bradley v. Frye-Chaiken (MSC Docket Nos. 164900-1), another 6-1 ruling that held court rules and statute do not require all attorneys who represent a sanctioned client in a single civil lawsuit to be held jointly responsible for frivolous conduct, let alone jointly or severally responsible for that conduct.
Although Bolden did not write one of the term’s more consequential decisions, she did offer the off-calendar opinion in O’Halloran v. Benson and DeVisser v. Benson (MSC Docket Nos. 166424-25). Bolden and her liberal colleagues in a 4-3 decision held that Benson had authority under Michigan Election Law to make changes to 2022 poll watcher guidance challenged by state Republicans, and they didn’t have to be promulgated as rules through the Administrative Procedures Act.
That meant the court challenged components of poll watcher guidance published by the Bureau of Elections in 2022 were lawful, with some caveats.
At least 14 were either issued as unsigned orders or as per curiam decisions written by the entire bench.
—————
Zahra, Viviano duel for first in dissent
With Clement often joining the liberal majority to decide about 25 percent of the term’s caseload, Zahra and Viviano often stood alone in dissenting to nearly half the term’s decisions.
The two nearly tied for the number dissents issued during the term, with Zahra inching out Viviano with 12 dissenting opinions to the latter’s 11 dissenting opinions.
Zahra issued full-throated dissents to the Mothering Justice holding, as well as the court’s decision in People v. Lemons (MSC Docket No. 163939).
On the high court’s decision in the adopt and amend case, Clement and Zahra would have held that the scheme was permissible, but it was the latter who threw heavy punches at Welch’s majority opinion.
“Despite the extensive authority of the Legislature to enact statutes in the public interest absent narrow constitutional limitations, despite the complete lack of constitutional language preventing the Legislature from amending an adopted initiative, despite the extensive constitutional record supporting the Legislature’s ‘full control’ over adopted initiatives, and despite the total absence of caselaw limiting legislative prerogatives when the text of Article II, Section 9 is otherwise silent, the Court declares amendments to the Improved Workforce Opportunity Wage Act and the Earned Sick Time Act unconstitutional,” Zahra wrote. “In so doing, it does not hold that adopt-and-amend is unconstitutional; it cannot so hold given the text of the Michigan Constitution and considering the effective functioning of a constitutional system.”
Instead, Zahra said, the majority superimposed a new requirement on the Constitution and abrogated “with precision” the legislation enacted in 2018. He also called the opinion a “misinterpretation” and an “erroneous decision on the merits,” as the court was now left unable to sever unconstitutional provisions.
Lemons, which granted a new trial in a shaken baby case, saw Zahra accuse the majority of unjustifiable conclusions.
“There simply is no basis in fact or law to overturn defendant’s murder conviction, which is supported by an extensive body of medical and record evidence,” Zahra wrote. “The result in this case is an injustice to the family of the victim and society at large who have accepted and relied upon a valid criminal conviction for almost 20 years. It also is a disservice to Michigan’s criminal justice system, which necessarily relies upon finality after appellate review to effectively function and protect the public.”
Zahra added that, “respect for society’s judgment of guilt, expressed in the form of a criminal conviction, and the attendant significance of personal accountability, rehabilitation, and reconciliation, will be increasingly substituted in the state of Michigan with denial of responsibility and the hope of perpetual litigation. That is not what our law commands.”
Viviano, for his part, eviscerated the majority holdings in Michigan Farm Bureau and Carter v. DTN Management Company (MSC Docket No. 165425).
The retiring justice in Michigan Farm Bureau expressed deep concerns with Clement’s opinion and called it “unfounded.” At one point he declared himself “dumbfounded” by Clement’s reasoning.
“Under NREPA, the APA, and our caselaw interpreting those statutes, it is clear that the 2020 GP is a ‘rule’ that may be challenged in a pre-enforcement declaratory-judgment action under MCL 24.264,” Viviano wrote.
“The majority’s attempt to label it as something else is unfounded and not persuasive.”
In another section, Viviano said that “the confusion and contradictions in the new legal regime created by the majority opinion will have to be sorted out in this case and others for years to come.”
“Given that historically over 92 percent of CAFOs have been covered by a general permit, the majority’s erroneous decision will surely be to the financial detriment of CAFOs across the state, which will now be required to engage in an uncertain, laborious, and litigious individual permitting process,” he added. “Indeed, the majority opinion sentences CAFOs, which cannot operate without a permit, to perpetual permitting litigation – including the litigation that will be necessary to parse the majority’s convoluted and confusing opinion.”
He also warned the ruling could lead to agencies without rulemaking authority in a subject area devising regulations that look and act like rules but are called something else to avoid the APA.
In Carter, which held administrative orders delaying lower court cases during the COVID-19 pandemic were constitutional, Viviano wrote that Bolden’s majority opinion broadly expanded the bench’s authority beyond the Constitution’s grant, “and tramples over separation-of-powers principles.”
“I disagree with the majority and the Court of Appeals that our administrative orders extending the deadline for initial filing of pleadings are within our authority to regulate practice and procedure or our authority to assume superintending control over state courts,” he wrote. “Rather, our attempt to extend such deadlines encroached upon the Legislature’s authority to create and amend substantive law. As a result, the administrative orders violated the separation of powers and were unconstitutional. The majority improperly elevates form over substance by mischaracterizing our orders as merely affecting the computation of days under MCR 1.108(1).”
Although Welch, Cavanagh and Clement dissented in a number of cases, it was Welch who wrote alone in dissent when the high court decided to not hear the appeal in the Trump ballot case, LaBrant v. Benson (MSC Docket No. 166470).
The high court in an unsigned order denied leave to overturn a Court of Claims holding that the question of Trump’s eligibility was a political one and not for the courts to decide. The Court of Appeals affirmed in a published opinion, setting up a potential battle before the high court.
Welch wanted the court to reach a decision on the merits of the question instead of punting considering the significance of the question. Still, she would have upheld the Court of Appeals’ ruling that the secretary of state is not required to determine eligibility of presidential candidates to appear on the primary ballot.
“The secretary of state is not legally required to confirm the eligibility of potential presidential primary candidates. She lacks the legal authority to remove a legally ineligible candidate from the ballot once their name has been put forward by a political party in compliance with the statutes governing primary elections,” Welch wrote. “I would affirm the Court of Appeals’ ruling on this issue, which still allows appellants to renew their legal efforts as to the Michigan general election later in 2024 should Trump become the Republican nominee for president of the United States or seek such office as an independent candidate.”
That said, Welch believed the court should have heard the appeal and made a ruling on the merits of the appellants’ arguments.
“The appellants argue that because the state has delegated to political parties the role of selecting primary candidates, this makes the political parties limited purpose state actors subject to the 14th Amendment of the U.S. Constitution,” Welch wrote. “On the basis of these cases, appellants argue that the political parties are state actors for purposes of putting forward candidates for the presidential primary, and thus, the political parties are subject to the U.S. Constitution. If this premise is true, then political parties might have a constitutional obligation to ensure that proposed presidential primary candidates are constitutionally eligible to hold the office of President before submitting their names to the secretary of state for inclusion on the primary ballot.”
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