As further repudiation of the proposed Employee Free Choice Act’s (H.R. 1409, S. 560) “card check” provision, voters in four states on Tuesday approved constitutional amendments to preserve secret ballot union representation elections. The state constitutions in Arizona, South Carolina, South Dakota and Utah will now contain similar language upholding the “fundamental” right to the secret ballot. Considered a preemptive strike against EFCA and other administrative efforts to bypass secret ballot elections, such ballot initiatives likely will become more prevalent.

In Arizona, the majority of voters approved Proposition 113, which amends the state constitution by adding the following section:

To preserve and protect the fundamental right of individuals to vote by secret ballot, where local, state or federal law requires elections for public offices or for ballot measures, or requires elections for public offices or for ballot measures, or requires designations or authorizations for employee representation, the right of individuals to vote by secret ballot shall be guaranteed.

South Carolina’s approved ballot initiative, Amendment 2, adds to the following language to its state constitution: “The fundamental right of an individual to vote by secret ballot is guaranteed for a designation, a selection, or an authorization for employee representation by a labor organization.”

Utah voters similarly passed Amendment A, which specifies that “elections required to be held by secret ballot include elections under state or federal law for public office, on an initiative or referendum, or to designate or authorize employee or individual representation.”

Finally, South Dakota’s Amendment K, which voters overwhelmingly approved, amends the state constitution by adding:

The rights of individuals to vote by secret ballot is fundamental. If any state or federal law requires or permits an election for public office, for any initiative or referendum, or for any designation or authorization of employee representation, the right of any individual to vote by secret ballot shall be guaranteed.

These ballot initiatives have been championed by Save Our Secret Ballot, an organization “dedicated to educating the American public on the continued need for a secret ballot wherever state or federal law requires elections.” The organization’s goal is to promote such ballot initiatives in all states.

Since EFCA is defunct and there currently are no serious efforts underway to legislatively or administratively remove secret ballot elections from the union organizing process, the only potential effect of these amendments right now would be an employer’s voluntary recognition of a union pursuant to a private card check agreement between the parties. It remains to be seen whether these amendments will be invoked in response to such recognition, currently permitted under the NLRA; and whether such a challenge would be pre-empted by the NLRA.

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