Tag Archives: election

Obama Vetoes rule that would have negative impact on union elections

President Barack Obama vetoed a measure passed by the Republican-led Congress that would have stopped the National Labor Relations Board from streamlining the process of unionizing workers.

The new rules, drafted by the NLRB last year would, shorten the amount of time between when a union election is called and when it is held to as little as 14 days.

They also require employers to supply union organizers with workers’ email addresses and telephone numbers, and delay legal challenges by employers until after workers have voted on a proposal to unionize.

They are now set to take effect on April 14.

Earlier this month, Republicans in the House and Senate approved a bill that would have stopped their enactment.

But on Tuesday, Obama vetoed the measure, while stating that he say the NLRB’s approach as “modest” and a reflection of “common sense.”

“”Unions have played a vital role in giving workers that voice, allowing workers to organize together for higher wages, better working conditions, and the benefits and protections that most workers take for granted today.,” the president said. ” Workers deserve a level playing field that lets them freely choose to make their voices heard, and this requires fair and streamlined procedures for determining whether to have unions as their bargaining representative..”

” Because this resolution seeks to undermine a streamlined democratic process that allows American workers to freely choose to make their voices heard, I cannot support it,” Obama added.

via Courthouse News Service.

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The Voting Rights Act

The Supreme Court ruled on Northwest Austin Municipal Utility District No. 1 NAMUDNO v. Holder, No. 08-322 (2013), answering the question of the whether a district (not the state) could seek the bailout provision under the Voting Rights Act.

The decision of the Supreme Court is important here because it did not rule on the issue of whether the Voting Rights Act was constitutional.

Instead, the Supreme Court ruled that the district could use the “bailout” provision under the Voting Rights Act, even if the state could not.  In holding this, the Supreme Court explained that the district fell under the definition of a “State of political subdivision,” and thereby could use the “bailout” provision.

Generally, the Voting Rights Act requires certain states to get pre-clearance before making any changes to elections.  One of these states includes Texas.  However, there is a provision (“bailout”) that states that the state can seek a declaratory judgment from a three-judge panel District Court in Washington, D.C.  42 USC 1973(b)(a)(1), 1973c(a).  The bailout provision requires:

  • The state has not used any forbidden voting test for the last 10 years;
  • The state has not been subject to a valid objection under the Voting Rights Act section 5;
  • The state has not been found liable for other rights act violations; and
  • The state has engaged in constructive efforts to eliminate intimidation and harassment of voters.

The Voting Rights Act only authorizes a bailout suit by a State or political subdivision.  42 USC 19873b(a)(1)(A).

Here, the government argued that under the statutory definition of the bailout provision, a district could not seek a bailout provision.  The Act provided that a “‘political subdivision’ shall mean any county or parish, except that where registration for voting is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting.” Section 14(c)(2).  The government argued that because the district was not a county or parish and did not conduct its own voter registration, the district was not covered under the Act.

However, the Supreme Court disagreed.  Citing previous Supreme Court cases, the Supreme Court stated the definition of a “political subdivision” must be broad and not limited to the statutory definition.  The Supreme Court explained,

Our decisions have already established that the statutory definition in [section] 14(c)(2) does not apply to every use of the term “political subdivision” in the Act.  We have, for example, concluded that the definition does not apply to the pre clearance obligation of [section] 5.

There, we expressly rejected the suggestion that the city of Sheffield was beyond the ambit of [section] 5 because it did not itself register voters and hence was not a political subdivision as the term is defined in [section] 14(c)(2) of the Act… [O]nce a State has been designed for coverage, [section] 14(c)(2)’s definition of political subdivision has no operative significance in determining the reach of [section] 5.

(markings in original).  Taking a broad approach, the Supreme Court ruled that a district was a political subdivision.

In addition, the Supreme Court noted that the 1982 amendments provided that even if the state could not bailout, a political subdivision might be able to assuming it met the bailout requirements.

via We gave you a chance: Today’s Shelby County decision in Plain English : SCOTUSblog.

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Judicial Ethics and Social Media

On February 21, 2013, the American Bar Association released a formal opinion (#462) regarding judicial ethics in the social media context.  The ABA concluded,

A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impartiality.

So what does this mean?

Electronic Social Media and the Judicial Independence, impartiality, and integrity

The ABA recognized that social networking is a part of worldwide culture and that electronic social media interactions might be beneficial to judges in order to prevent them from being thought of as isolated or out of touch.

So how should judges then behave in this electronic environment?  Given the oath and importance of promoting public confidence in the independence, integrity, and impartiality,” the judge must be sensitive to the appearance of relationships with others.

It is important to understand that relations over the internet are difficult to manage because messages may be taken out of context, misinterpreted, or relayed incorrectly.

In other words, judges must assume that comments, images, or profile information, as well as any other information, might be publicly revealed without the judge’s permission.

In addition, judges should not form relationships with persons or organizations that might be violative of Judicial Ethics because these relationships convey that the individuals or organizations are in a position to influence the judge.

Furthermore, there might be disclosure or disqualification concerns regarding judges when the sites that were “friended” or “liked” which are used by lawyers or others who may appear before the judge.  The context is important here when assessing the judge’s relationship to attorneys or others who may appear before them.

Electronic Social Media and Election Campaigns

In the ABA Model Code (which may be adopted as a whole or in part by states), a judge or judicial candidate may engage in political or campaign activity with certain enumerated exceptions.

Of great importance is that judges and judicial candidates must “be free and appear to be free from political influence and political pressure.” ABA Model Rule 4.1 [1].

Similarly of equal importance, the judge or judicial candidate is prohibited from personally soliciting or accepting campaign contributions other than through a campaign committee.  ABA Model Rule 4.1(A)(8); see also ABA Model Rule 4.4.  In the Model Rules, the method of communication is not addressed or restricted.

In addition, judges and judicial candidates are prohibited from “publicly endorsing or opposing a candidate for any public office.” ABA Model Rule 4.1(A)(3).  This means that judges or judicial candidates should be aware that by “liking” or becoming a “fan” of, or by “sharing” messages, photos, or other content, this Model Rule might be violated.

In sum, judges and judicial candidates can use social media but must be aware of the potential pitfalls that might arise. These might arise from “friending,” “liking,” “sharing,” being a “fan” of, and posting comments, photos, or other information that might be distributed.  It is also important for judges and judicial candidates to be aware that any information on the Internet might be distributed by others and made public with or without their consent.

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Campaign donation issue reopened

On Tuesday, the Supreme Court agreed to hear McCutcheon v. Federal Election Commission, 12-536.   The gist of this case deals with the constitutionality of the two-year ceilings that federal law sets on what an individual can give during a campaign for the presidency or Congress, in donations to candidates, to political parties, or to other political committees.

The Supreme Court did not explicitly promise whether it would reconsider its decision in Buckley v. Valeo (1976).  Since Buckley, the government had more leeway to control contributions to candidates or political organizations than over spending by candidates or by independent political activists.

In 2010, the Supreme Court decided a hotly controversial decision in Citizens United v. FEC.  In Citizens United, the Supreme Court declared unconstitutional any limit on spending during federal campaigns by corporations or labor unions, so long as they spent the money independently of a candidate or candidate organization.

In McCutcheon, McCutcheon wants to be able to give more contributions than the two-year overall limits.  McCutcheon’s contributions, if he could go over the limit, would have exceeded the two-year ceiling by $26,200.

Under federal law, the ceiling for the 2011-2012 campaign season was $2,500 per election to any candidate or a candidate’s campaign organization, no more than $30,800 per year to a national political party, no more than $10,000 per year to a state political party, and no more than $5,000 to any other political committee.

The two year ceiling for that same period, which is the issue in this case, is set at $177,000 overall.  That is broken down into $46,200 to a candidate for federal office and $70,800 to non-candidate entities.  The second amount was restricted in that no more than $46,200 could be given to a state party or a non-candidate committee.

via Campaign donation issue reopened : SCOTUSblog.

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Sup. Ct. March Calendar

Next month, the Supreme Court will be hearing high profile cases – including the gay marriage debate (California’s Proposition 8 and DOMA), as well as voter registration laws.  In addition, the Supreme Court will hear a variety of important issues, such as class arbitration waivers, generic pharmaceutical regulations, and reimbursement or payment under the Takings Clause.

The following are the oral arguments scheduled for March.

Monday March 18

Arizona v. Inter Tribal Council of Arizona:

  1. Whether the 9th Circuit erred in creating a new, heightened preemption test under Art. 1, Sec. 4, Cl. 1 of the U.S. Constitution (“the Elections Clause”) that is contrary to the Supreme Court’s authority and conflicts with other circuit court decisions; and
  2. Whether the 9th Circuit erred in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote.

Bullock v. Bankchampaign

  1. What degree of misconduct by a trustee constitute “defalcation” under Sec. 523(a)(4) of the Bankruptcy Code that disqualifies the errant trustee’s resulting debt from a bankruptcy discharge, and whether it includes actions that result in no loss of trust property.

Tuesday March 19

Sebelius v. Cloer

  1. Whether a person whose petition under the National Vaccine Injury Compensation Program is dismissed as untimely may recover from the United States an award of attorney’s fees and costs.

Mutual Pharmaceutical Co. v. Bartlett

  1. Whether the 1st Circuit erred when it created a circuit split and held – in clear conflict with this Court’s decisions in PLIVA v. Mensing, Riegel v. Medtronic, and Cipollone v. Ligget Group – that federal law does not preempt state law design-defect claims targeting generic pharmaceutical products because the conceded conflict between such claims and the federal laws governing generic pharmaceutical design allegedly can be avoided if the makers of generic pharmaceuticals simply stop making their products.

Wednesday March 20

Horne v. Dept. of Agriculture

  1. Whether the 9th Circuit erred in holding, contrary to the decisions of 5 other circuit courts of appeals, that a party may not raise the Takings Clause as a defense to a “direct transfer of funds mandated by the Government,” E. Enterp. v. Apfel, but instead must pay the money and then bring a separate, later claim requesting reimbursement of the money under the Tucker Act in the Court of Federal Claims; and
  2. Whether the 9th Circuit erred in holding, contrary to the decision of the Federal Circuit, that it lacked jurisdiction over petitioner’s takings defense, even though petitioners, as “handlers” of raisin under the Raisin Marketing Order, as statutory required under 7 USC 608c(15) to exhaust all claims and defenses in administrative proceedings before the United States Department of Agriculture, with exclusive jurisdiction for review in federal district court.

Dan’s City Used Cars v. Pelkey

  1. Whether state statutory, common law negligence, and consumer protection act enforcement actions against two-motor carrier based on state law regulating the sale and disposal of a towed vehicle are related to a transportation service provided by the carrier and thus preempted by 49 USC 14501-c-1.

Monday March 25

Oxford Health Plans v. Sutter

  1. Whether an arbitrator acts within his powers under the Federal Arbitration Act (as the 2nd and 3d Circuits have held) or exceeds those powers (as the 5th Circuit has held) by determining that parties affirmatively “agreed to authorize class arbitration,” Stolt-Nielsen S.A. v. Animalfeeds Int’l Corp., based solely on their use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under their contract.

Federal Trade Commission v. Actavis

  1. Whether reverse-payment agreements are per se lawful unless the underlying patent litigation was a sham or the patent was obtained by fraud (as the court below held), or instead are presumptively anticompetitive and unlawful (as the 3d Circuit has held).

Tuesday March 26

Hollingsworth v. Perry

  1. Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and
  2. Whether petitioners have standing under Art. III, Sec. 2 of the Constitution in this case.

Wednesday March 27

United States v. Windsor

  1. Whether Section 3 of the Defense Marriage Act (DOMA) violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State; 
  2. Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and
  3. Whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

via New March argument calendar : SCOTUSblog.

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Voting Flaws Widespread

If you read my Minnesota Lawyer – JD Rising article, accessed here, you will know that there are a lot of voting problems that affect voters.

The Pew Charitable Trusts recently released a major new study which shoes that the flaws in the American election system are deep and widespread.  You can see the results via an interactive tool here.  The full brief can be accessed here.

The Pew Charitable Trusts ranked 50 states on 17 indicators, including but not limited to wait times, lost votes, problems with absentee and provisional ballots.  The study is based on data from the 2008 and 2010 elections.

The problematic findings are as follows.

  • Some states lost very few votes thanks to shortcomings in voting technology and voter confusion.  The best reporting failure rates was of 0.5% or less in 2008.  West Virginia’s rate was 3.2%.
  • Voter registration rejections varied.  North Dakota does not require voter registration, and Alabama and Kansas reported rejecting less than 0.05% of the applications in 2008.  Pennsylvania and Indiana each rejected more than half of the registration applications.
  • Arizona and California had the highest rates of problems with voter registration and absentee ballots.  In 2010, California rejected 0.7% absentee ballots, a higher rate than any other state.
  • In Colorado, where 70% of the voters cast ballots by mail in 2012, rejected 0.4% of ballots in 2010.
  • Nationwide, a bit over 1% of voters are given a provisional ballot.  In Arizona, the rate in 2008 was of 6.5%.  In Ohio, it was 3.6%.

Some of the other findings state:

  • In 2008, the 10 states with the shortest times had waits on average of fewer than 6 minutes.  South Carolina had the longest wait times of just over an hour.  Georgia had more than 37 minutes.
  • Only 8 States provided all possible voter lookup tools (Indiana, Maryland, Minnesota, North Carolina, North Dakota, Rhode Island, Virginia, and Wisconsin).  Only 2 States had no information at all (California and Vermont).
  • Six of the 10 states with the lowest rates of nonvoting due to registration problems (Idaho, Minnesota, New Hampshire, North Dakota, and Wisconsin) have allowed Election Day registration for at least two decades.  North Dakota does not require voter registration.
  • The high performers are: Colorado, Delaware, Michigan, Minnesota, North Dakota, Washington, and Wisconsin.
  • The low performers are: Alabama, California, Mississippi, New York, Oklahoma, South Carolina, and West Virginia.

 

via U.S. Voting Flaws Are Widespread, Study Shows – NYTimes.com.

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DC upholds challenge to Health Care Rule

In San Miguel Hosp. Corp. v. NLRB, ___F.3d___ D.C. Cir. 11/02/12, The DC Court of Appeals affirmed the NLRB’s decision to certify the Union as the sole representative of a unit that comprised professionals and non-professional employees.

The Hospital raised two main arguments.

  1. The Hospital argued that the Health Care Rule violated Section 9 of the NLRA because it endorses the extent of a union’s organization as the controlling factor in unit determination.
  2. The Hospital also argued that unit certification is improper when the unit comprises professional and non-professional employees.

The Court responded to these arguments as follows.

  1. The Court held the argument to have “zero merit.”  First, the Court explained, the administrative record makes “quite clear that the factors the Board considered in deciding upon the eight listed units included ‘uniqueness of function; training, education and licensing; wages, hours and working conditions; supervision; employee interaction; and factors relating to the collective bargaining agreement.'”  Second, the Court stated that the NLRA only requires that the extent of organization not be the controlling factor.  Therefore, the “consideration of that factor among others is entirely lawful.”
  2. Regarding the second Hospital’s argument, the Court highlighted the fact that the Hospital never challenged this issue.  The Court also stated that there is no precedent, in the NLRB or Courts, that addressed this specific issue.  As a consequence, the Court concluded that no remand was necessary since the Hospital waived any subsequent challenge.

In plain words, the DC Circuit Court of Appeals reaffirmed two main conclusions, supported by precedent.

First, that if you don’t raise a challenge below — you cannot raise a challenge in appeal.

Second, that the NLRA Section 9(c) provides that the NLRB can use the extent of the organization as a factor, as long as it is not controlling.  Since the NLRB used a plethora of factors, it was clear that it did not decide the issue solely on the extent of union organization.

What we can learn from this case is simple.  Raise all challenges in the court below to make sure you preserve these challenges in an appeal.

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Texas election day and arresting OSCE for supervision

The Texas attorney general warned the Organization for Security and Co-operation in Europe that its election observers could be arrested and criminally charged if they come within 100 feet of a polling place on Election Day.

In a Tuesday letter to the OSCE, Attorney General Greg Abbott said the observers have no jurisdiction in Texas.

“While it remains unclear exactly what your monitoring is intended to achieve, or precisely what tactics you will use to achieve the proposed monitoring, OSCE has stated publicly that it will visit polling stations on Election Day as part of its monitoring plan,” Abbott wrote.

“In April, you reportedly met with a group of organizations that have filed lawsuits challenging election integrity laws enacted by the Texas Legislature. One of those organizations, Project Vote, is closely affiliated with ACORN, which collapsed in disgrace after its role in a widespread voter-registration fraud scheme was uncovered.”

Abbott said OSCE has called voter-identification laws a barrier to the right to vote.

A federal appeals court in August court struck down Texas’ voter identification law, saying it disenfranchises minorities and the poor.

The law, enacted by the Republican-dominated Legislature in 2011, required Texas voters to provide with photo identification, which was limited to a driver’s license, personal identification card or concealed handgun license issued by the Texas Department of Public Safety, a U.S. passport, a U.S. military ID or a U.S. citizenship certificate.

Abbott, Texas Gov. Rick Perry and the Legislature claims the law was needed to prevent voter fraud.

Abbott wrote to the OSCE: “The OSCE may be entitled to its opinions about Voter ID laws, but your opinion is legally irrelevant in the United States, where the Supreme Court has already determined that Voter ID laws are constitutional. If OSCE members want to learn more about our election processes so they can improve their own democratic systems, we welcome the opportunity to discuss the measures Texas has implemented to protect the integrity of elections. However, groups and individuals from outside the United States are not allowed to influence or interfere with the election process in Texas.”

Abbott’s letter concludes: “It may be a criminal offense for OSCE’s representatives to maintain a presence within 100 feet of a polling place’s entrance. Failure to comply with these requirements could subject the OSCE’s representatives to criminal prosecution for violating state law.”

The OSCE, based in Vienna, Austria, is a multinational group with particular interest in arms control, border management, human trafficking, elections and education, according to its website.

via Courthouse News Service.

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Pennsylvania Voter ID Law

From ABA Journal News:

A Pennsylvania judge has enjoined enforcement of the state’s voter ID law, allowing state voters to cast ballots in the upcoming presidential election without obtaining photo identification.

Judge Robert Simpson issued his decision on Tuesday, report the Philadelphia InquirerReutersForbesand the Associated Press.

According to the Inquirer and Forbes, Simpson found fault with a section of the law requiring voters without IDs to cast provisional ballots and then to produce photo identification within six days. Simpson said the time period was not sufficient.

Simpson ruled (PDF) after hearing testimony about state efforts to make it easier to obtain a valid photo ID. The state supreme court had directed Simpson to consider whether photo IDs were actually available and whether voter disenfranchisement would result.

via Judge Halts Enforcement of Pennsylvania Voter ID Law – News – ABA Journal.

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Judge tosses Dayton’s executive order on child care unionization

Today, a Ramsey County District Court judge has thrown out Governor Dayton’s order that allowed in-home day care providers to vote on whether to unionize.  The decision can be accessed here.

Minnesota Public Radio stated:

Lindman said Dayton didn’t have the power to issue the executive order because the state and the day care providers don’t have an employer-employee relationship. He said Dayton’s order superseded the legislative process and violated the separation of powers clause in the Minnesota Constitution. The judge ruled that the power to decide whether in-home day care providers can unionize lies with the Legislature.

MPR’s summary of the conclusions of law needs to be further clarified in order to avoid confusion. First, the Order did state that this should have been brought by the Legislature.  (Order’s Conclusions of Law, paragraph 11).

Second, the statement that the court found no employer-employee relationship is misleading.  The entire decision hinged on whether or not a “labor dispute” existed as defined under Minn. Stat. 179.01, subd. 7.  Not whether there was an employer-employee relationship.  In fact, in the decision itself, Judge Lindman acknowledges that a “labor dispute” may arise regardless of whether an employer-employee relationship exists.  Minnesota Statutes section 179.01, subd.7 (emphasis added) provides:

“Labor dispute” includes any controversy concerning employment, tenure or conditions or terms of employment or concerning the association or right of representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms, tenure, or other conditions of employment, regardless of whether or not the relationship of employer and employee exists as to the disputants.

Nevertheless, Judge Lindman ruled that the controversy must have a bearing on the employer-employee relationship.  Citing Minnesota Council of State Employees, No. 19 v. Am. Fed. of State, County and Municipal Employees, 19 N.W.2d 414, 421 (Minn. 1945).

After finding that there was no “labor dispute”, the court then held that BMS had no authority to intervene and that Governor Dayton had no authority to direct BMS to conduct an election.  (See Order’s Conclusions of Law paragraphs 7-10).

via Judge tosses Dayton’s executive order on child care unionization | Capitol View | Minnesota Public Radio.

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