Groundbreaking US Supreme Court Decision on the Tenth and Ninth Amendment

• Ninth Amendment – Protection of rights not specifically enumerated in the Constitution.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

• Tenth Amendment – Powers of States and people.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

from the Goldwater Institute

Arizona voters approved an amendment to the state constitution in 2010 to expand protection for a worker’s right to vote by secret ballot if asked to join a union. On May 6, 2011, the National Labor Relations Board sued the State of Arizona in federal court to prevent enforcement of the constitutional amendment, claiming federal law pre-empts any protection to workers that the state might offer. The Goldwater Institute has joined the State in opposing the lawsuit on behalf of individual workers to protect the Save Our Secret Ballot amendment and safeguard an individual’s right to decide whether or not to join a labor organization.

What happened to bring about this challenge?

Since 1935, federal law has protected the ability of many American workers to join a labor union. Union organizers can gauge the interest of a particular group of employees by asking that they sign union registration cards. However, federal law also protects the right to request a formal election by secret ballot so neither union organizers nor business owners can coercion or intimidation to sway a worker’s decision.

In 2006, the Employee Free Choice Act or “card check” bill was first introduced in Congress. This proposed law would remove the right to a secret-ballot vote. The bill was approved by the U.S. House of Representatives in 2007 while under control of congressional Democrats. President Barack Obama promised to sign the bill into law while he campaigned for the White House in 2008.

While the bill has yet to receive final congressional approval, the National Labor Relations Boardannounced in 2010 that it would consider revoking the right to secret-ballot elections as an administrative act.

Employees and business groups became alarmed by this threat to a fundamental right of American workers. They sought to establish independent protection for secret-ballot elections. The Goldwater Institute drafted model legislation, called Save Our Secret Ballot, which draws upon the sovereign authority for each of the 50 states to extend additional rights and freedoms to citizens beyond what might already be protected at the federal level.

In November 2010, voters in four states – Arizona, South Carolina, South Dakota, and Utah – overwhelmingly approved versions of Save Our Secret Ballot as an amendment to their state constitutions. In Arizona, the constitutional amendment approved by Proposition 113 says: “The right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.”

Two months later, the National Labor Relations Board urged the attorneys general in all four states to not enforce Save Our Secret Ballot, claiming the constitutional amendment conflicts with existing federal law and therefore is pre-empted under the federal Constitution. The attorneys general informed the National Labor Relations Board they would uphold the voters’ intent.

In April 2011, the National Labor Relations Board announced it would file lawsuits against Arizona and South Dakota. The Arizona lawsuit formally filed in May 2011 claims the federal agency has sole authority to decide what avenues are available for workers to determine if they will join a labor union.

While the Arizona Attorney General’s Office represents the State, the Goldwater Institute represents individual working Arizonans who would lose a constitutional right if the NLRB succeeds.

What does Goldwater Institute want from this legal challenge?

The right to a secret ballot is one of the most sacred principles of American democracy. Federal law has protected that right in the context of union organizing for 75 years, ensuring a decision by workers to form a union is voluntary rather than coerced. Arizona voters believe so strongly in this right that they extended the independent shield of the state constitution to protect it. But now that right is under attack. The Goldwater Institute seeks to uphold the Save our Secret Ballot amendment and defend the right of every Arizona worker to make a decision about joining a labor union by secret ballot.

Who is the client?

The Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation represents 34 individual employees eligible to join a union including construction workers Jose Barraza, Rafael Barraza, R. Scott Brooks Jr., Sandra Brown, Dominic T. Drobeck, Jamie Franklin, Ahelardo Garcia, Angelo Granata, Justin Helwig, Jose Hernandez, Raul Hernandez, Reyes Inzunza, Derek Kaiser, Enrique Lara Jr., Benny P. Martinez, Gabriel Mendez, Eleuterio Miguel, Chad A. Mullenax, Roger S. Myllenbeck, Adalberto Pena Parra, Tyson Petrie, Jeff Phillips, Shawn Riegle, Daniel Rusch, David Santellano, Roy C. Smith, Kelvin L. Steffen, Johnnie Teller III, Marco Teran, Steven R.Tulloss, Israel Vargas, and Harvey Wietting; as well as Joyce McClain, a private hospital nurse, and Raeleen Kasinec, a charter school teacher.

The Institute also represents Save Our Secret Ballot, a public interest group that led the campaign to win voter approval of the amendment to the Arizona state constitution in 2010.

Who is the judge?

U.S. District Judge Frederick Martone of Phoenix.

What are the key issues?

Arizona and other states can also offer protections for freedom that are included in the U.S. Constitution or federal statute.

The courts have long recognized that states can protect the same civil liberties as the Constitution or a federal statute, and even go beyond federal protections. For example, many states provide additional freedoms for speech and acts of journalism not currently accepted by the federal government. The voters of Arizona, South Carolina, South Dakota, and Utah decided in 2010 to include in their state constitutions a right to secret-ballot elections for union organization, a right that has been protected by federal law since 1935. Indiana added that protection in May 2011. Voters in California are being asked to signatures to put the issue on that state’s ballot in 2012.

The Save Our Secret Ballot amendment does not conflict with the National Labor Relations Act.

Save our Secret Ballot defends the same fundament right at the state level that’s already protected by federal law: Access to secret-ballot elections when workers are debating whether to organize a union. The National Labor Relations Board claims the Save Our Secret Ballot would interfere with its choice to recognize voluntary agreements between employers and unions to rely solely on card signatures to determine the desire of employees. But the NLRB has offered an excessively broad interpretation of federal law that has not been upheld by the federal courts. This interpretation also conflicts with the freedom of association protected by the First Amendment. Arizona’s constitutional amendment upholds the freedom of association by protecting every worker’s right to avoid coercion or intimidation with a secret-ballot vote.

Can we win?

In the American system of federalism, the 50 states are co-equal partners with the federal government and have clear authority under the 10th Amendment to promote the freedom of their citizens. The U.S. Supreme Court has shown a strong interest in recent years in honoring this constitutional partnership instead of simply deferring to federal officials and striking down state policies that are challenged. The Save Our Secret Ballot amendment as approved by Arizona voters reflects a fundamental right already protected by federal law. The NLRB will have the burden to prove this state constitutional amendment somehow conflicts with the limited authority of Congress to regulate interstate commerce.

Case Documents

Motion to Intervene (6/9/2011)

Complaint (5/6/2011)

Case Timeline

May 6, 2011: NLRB files lawsuit in U.S. District Court against State of Arizona

June 9, 2011: Goldwater Institute files to interviene in NLRB’s lawsuit against the State of Arizona

The Legal Team

• Clint Bolick is the Goldwater Institute’s litigation director. He has extensive success before trial judges and appellate courts. He has won two cases before the U.S. Supreme Court. He was named as a Lawyer of the Year in 2003 by American Lawyer magazine.

• Carrie Ann Sitren strives to defend property rights, enforce fiscal responsibility, and protect school choice. A graduate of the Wake Forest University School of Law, she also has been a strong advocate for public access to information about government policies before final decisions are reached, using Arizona’s public records law to compel city governments to release key documents that they would prefer to keep hidden.

Read more at Militant Libertarian