Author

Jerrick Adams

Jerrick Adams is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

How is 2020’s legislative activity shaping up?

Comparing legislative activity in 2020 and 2019                   

In this week’s edition, we compare legislative activity on public-sector labor issues in the first seven months of 2020 with activity during the same period in 2019.

2019 legislative activity, January through July  

In the first seven months of 2019, legislatures nationwide took up 101 bills related to public-sector labor policy. Seven became law. 

  • Total number of bills introduced or carried over from prior sessions: 101
    • Bills sponsored by Democrats: 50
    • Bills sponsored by Republicans: 38
    • Bills sponsored by bipartisan groups: 6
    • Bills sponsored by committees: 7
  •  Total number of enacted bills: 7
    • Illinois SB1784: This bill requires that public-sector union representatives be granted an opportunity to meet with new hires. It requires employers to furnish unions with worker information, including addresses, contact numbers, and email addresses. It also permits unions to limit the period during which members can resign and rescind dues deduction authorizations. 
    • Nevada SB135: This bill provides for collective bargaining rights for state employees.
    • Oregon HB3009: This bill requires public employers to provide unions with access to new employees. This bill also permits individuals who are not union members to make payments in lieu of dues to unions. 
    • Oregon HB2016: This bill requires public employers to grant paid time to employees participating in certain union activities. It also requires employers to furnish unions with access to employees. 
    • Rhode Island H5259: This bill authorizes unions to impose fees on non-members for administrative matters.
    • Rhode Island S0712: This bill authorizes unions to impose fees on non-members for administrative matters. It requires employers to notify unions within five days of hiring new employees. It also requires employees to file written notice with the state controller in order to discontinue dues payroll deductions.
    • Washington HB1575: This bill declares that public employers and public-sector unions are not liable for claims involving agency fees paid to unions before Janus. It repealed statutes requiring employees to join unions or pay dues as a condition of employment. It also amends dues deduction authorization laws, allowing authorizations to be initiated via electronic, voice, or written communication. It also requires authorizations to be discontinued by a written request made to the union.
  • States with the most legislative activity:
    • Oregon: 10 bills
    • Pennsylvania: 9 bills
    • Washington: 8 bills
    • Massachusetts: 6 bills
    • New Hampshire: 6 bills
    • Oklahoma: 5 bills

2020 legislative activity, January through July

In the first seven months of 2020, legislatures nationwide have taken up 99 bills related to public-sector labor policy. This is roughly on par with the number of relevant bills taken up during the same period in 2019. Three bills became law. 

Although sessions in many states were either suspended or otherwise affected as a result of the COVID-19 outbreak, the similarity between the total number of bills introduced or carried over in 2019 and 2020 shows that most of this activity occurs in the first two or three months of the year when legislatures first convene. 

  • Total number of bills introduced or carried over from prior sessions: 99
    • Bills sponsored by Democrats: 52
    • Bills sponsored by Republicans: 34
    • Bills sponsored by bipartisan groups: 5
    • Bills sponsored by committees: 8
  •  Total number of enacted bills: 3
    • Virginia HB582: This bill repealed an existing ban on collective bargaining by public employees.
    • Virginia SB939: This bill permitted local governments to recognize unions as bargaining agents for public-sector workers.
    • Washington HB2017: This bill established collective bargaining rights for administrative law judges.
  • States with the most legislative activity:
    • Pennsylvania: 10 bills
    • Oklahoma: 8 bills
    • Washington: 8 bills
    • Maryland: 7 bills
    • California: 6 bills 
    • New Hampshire: 6 bills

The stacked bar chart below compares the 2019 and 2020 figures by partisan affiliation of bill sponsors. 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 99 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

  • California AB2850: This bill would specify that the Public Employment Relations Board has jurisdiction to enforce statutory provisions governing employer-employee relations within the San Francisco Bay Area Rapid Transit District.
    • Democratic sponsorship.
    • Senate Labor, Public Employment and Retirement Committee hearing, scheduled Aug. 5, postponed.


Penn. public-sector employee sues AFSCME over membership resignation policies

Penn. public-sector employee sues AFSCME over membership resignation policies            

On July 29, a public-sector employee in Pennsylvania filed a federal suit against the American Federation of State, County, and Municipal Employees (AFSCME) Council 13, challenging the constitutionality of the union’s membership and dues-deduction revocation policies.

Who are the parties to the suit?  

The plaintiff is Ralph R. Rhodes, an employee of the state Department of Human Services. Attorneys from the Fairness Center are representing Rhodes. The Fairness Center describes itself as “a nonprofit, public interest law firm that provides free legal services to those hurt by public-sector union officials.”

The defendants are AFSCME Council 13 and its executive director, David R. Fillman. AFSCME Council 13 is one of Pennsylvania’s larger public-sector labor unions. According to its most recent annual report filed with the U.S. Department of Labor, AFSCME Council 13 had 52,883 dues-paying members and 582 fee payers (who are not considered full members), as of Sept. 27, 2019. 

What is at issue?

AFSCME Council 13 negotiated a collective bargaining agreement with the state, effective July 1, 2016, through June 30, 2019. Resignations from the union were restricted to the 15-day period preceding the expiration of the agreement. Union policies also limit revocations of dues deduction authorizations to either the 15-day period preceding the annual anniversary date of the authorization or the 15-day period preceding the expiration of the collective bargaining agreement.  

Rhodes submitted his resignation letter to the union, both by mail (postmarked June 25, 2019) and in person (to his union representative). Rhodes alleges “defendants continued to take and/or accept purported union dues deducted from plaintiff’s wages even after they knew that seizure of purported union dues from plaintiff’s wages was against plaintiff’s will and without his consent.” Rhodes argues these actions amounted to “compelled association and speech,” in violation of his First and Fourteenth Amendment rights. He is seeking damages in the amount of all dues deducted from his wages between the date of his resignation and the date on which the deductions stopped (June 12, 2020). 

What are the reactions? 

Nathan McGrath, president of the Fairness Center, said, “Mr. Rhodes followed all the right steps to resign, and the union refused to honor his resignation. In addition to ignoring his resignation, AFSCME added insult to injury by continuing to take union dues from Mr. Rhodes long after he resigned.” 

AFSCME Council 13 officials have not commented publicly on the lawsuit. 

What comes next? 

The suit was filed in the United States District Court for the Middle District of Pennsylvania. It has been assigned to Judge Matthew Brann, a Barack Obama (D) appointee. The case name and number are Rhodes v. American Federation of State County and Municipal Employees Council 13, 4:20-cv-01313. 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 98 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

  • California AB2850: This bill would specify that the Public Employment Relations Board has jurisdiction to enforce statutory provisions governing employer-employee relations within the San Francisco Bay Area Rapid Transit District.
    • Democratic sponsorship.
    • Amended and re-referred to Assembly Labor and Public Employment and Retirement committees July 28.
  • Ohio HB733: This bill would make employees of the General Assembly subject to the state’s Public Employees’ Collective Bargaining Law.
    • Democratic sponsorship. 
    • Introduced July 27. 

Thank you for reading! Let us know what you think! Reply to this email with any feedback or recommendations. 



States begin modifying general election voting procedures in response to COVID-19 outbreak

With the primary election season coming to a close, election administrators across the country are turning their attention to Nov. 3, modifying voting procedures in response to the continued effects of the COVID-19 outbreak.

To date, at least 21 states have modified voting procedures for the Nov. 3 general election.

  • Six states (Alabama, Arkansas, Massachusetts, Missouri, New Hampshire, and Tennessee) have expanded absentee/mail-in voting eligibility. These states are shaded in light purple in the map below.
  • Eight states (Connecticut, Delaware, Illinois, Iowa, Maryland, Michigan, New Mexico, and Wisconsin) are automatically sending absentee/mail-in ballot applications to all voters in the Nov. 3 general election. These states are shaded in medium purple in the map below.
  • Two states (California and Vermont) are automatically sending absentee/mail-in ballots to all voters in the Nov. 3 general election. These states are shaded in blue in the map below.
  • Five states (Mississippi, North Carolina, Oklahoma, South Carolina, and Texas) have made other procedural changes to the conduct of the Nov. 3 general election. These states are shaded in dark gray in the map below.
GGRBr-general-election-procedure-changes-in-response-to-covid-19.png

Election administration changes since our last issue

Since our July 15 edition, we’ve tracked the following election administration modifications:

  • Alabama: On July 17, Secretary of State John Merrill (R) issued an emergency rule allowing any qualified voter to cast an absentee ballot in the Nov. 3 general election.*
  • Iowa: On July 17, Secretary of State Paul Pate (R) announced that absentee ballot application forms would be automatically sent to all active registered voters in the Nov. 3 general election.
  • Maryland: On July 20, Judge Richard Bennett of the United States District Court for the District of Maryland halved the signature requirement for unaffiliated candidates in Maryland.
  • New Hampshire: On July 17, Gov. Chris Sununu (R) signed HB1266 into law, which formally established concern over COVID-19 as a valid reason for voting absentee in both the Sept. 8 primary and Nov. 3 general elections. The legislation also temporarily allowed voters to submit one absentee ballot application for both elections.
  • North Carolina: On July 17, Karen Brinson Bell, the executive director of the North Carolina State Board of Elections, issued an emergency order mandating a number of modifications to in-person voting in the Nov. 3 general election.
  • Texas:
    • On July 18, the United States Court of Appeals for the Fifth Circuit stayed a district court ruling that had allowed the Republican Party of Texas to proceed with its in-person state convention. This ruling effectively reinstated the cancellation order Houston officials issued on July 8.
    • On July 27, Gov. Greg Abbott (R) issued a proclamation extending the early voting period for the Nov. 3 general election by six days. Originally scheduled to begin on Oct. 19, early voting will now begin on Oct. 13.
  • Vermont: On July 20, Secretary of State Jim Condos (D) issued a directive that a mail-in ballot be sent automatically to every active registered voter in the Nov. 3 general election.

Redistricting developments since our last issue

The effects of the COVID-19 outbreak on the conduct of the United States Census are poised to postpone or otherwise alter redistricting efforts, which generally begin in earnest at the beginning of the calendar year following completion of the census. Beginning today, we’ll devote some space in each issue to this subject.

  • California: On July 17, in a unanimous decision, the California Supreme Court extended the constitutional and statutory deadlines for congressional, state legislative, and Board of Equalization redistricting by at least four months because of possible delays in receiving data from the U.S. Census Bureau. The court directed the California Citizens Redistricting Commission to release draft district plans by Nov. 1, 2021, and final district plans by Dec. 15, 2021. The original deadlines were July 1, 2021, and August 15, 2021, respectively. The court provided for further extensions if the federal government does not provide the necessary data by July 31, 2021.

Litigation tracking

To date, we have tracked 145 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. In each issue of The Ballot Bulletin, we shine a spotlight on what we consider one of the more interesting recent events in this area. Click here to view the complete list of lawsuits and court orders.

This week, we turn our attention to a case out of Florida, Grimes v. Florida Department of State.

  • Case name: Grimes v. Florida Department of State
  • Case number: 2020 CA 000908
  • State of origin: Florida
  • Court: Second Judicial Circuit Court
  • Summary: In May, three Florida residents filed suit against state and local election officials, requesting that the Second Judicial Circuit Court order these officials to automatically send mail-in ballots, complete with prepaid return postage, to all voters in the Nov. 3 general election. The defendants moved to dismiss. On July 20, Judge Charles W. Dodson granted the motion to dismiss, writing the following in his order: “The court finds that [plaintiffs’ complaint] fails to state a justiciable controversy at this time. Rather, the allegations appear to seek an advisory opinion. Plaintiffs have not alleged a burden or harm personal to them. No difficulty is alleged in requesting a vote-by-mail ballot or otherwise voting by mail. Further, there is no specific constitutional claim or violation alleged.”
  • Court documents:

Legislation tracking

To date, we have tracked 264 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states shaded in white, we have tracked no relevant bills.

Legislation related to elections and COVID-19, 2020

COVID-19 election bills July 29.png


Maine Rep. Golden introduces bill creating donor disclosure requirements for 501(c)(4)s

The Disclosure Digest

Explore the legislation, litigation, and advocacy surrounding nonprofit donor disclosure with The Disclosure Digest, a Ballotpedia newsletter.

Under federal law, nonprofits are generally not required to disclose to the public information about their donors. State laws, however, may require such disclosure. Some say expanded donor disclosure provisions minimize the potential for fraud and establish public accountability. Meanwhile, others say that disclosing to the public information about donors violates privacy rights and can inhibit charitable activity.

Maine Rep. Golden introduces bill creating donor disclosure requirements for 501(c)(4)s

On July 9, Rep. Jared Golden (D), of Maine’s second congressional district, introduced HR7525 in the U.S. House of Representatives. The legislation proposes new donor disclosure requirements for 501(c)(4) nonprofits that make political expenditures in any amount. The bill also proposes capping a 501(c)(4)’s political spending at 10 percent of its total annual expenditures.

Background

Nonprofits organized under Section 501(c)(4) of the Internal Revenue Code are commonly referred to as social welfare organizations, which the Internal Revenue Service defines as “organizations that may be performing some type of public or community benefit but whose principal feature is lack of private benefit or profit.”

Under existing law and agency rules, donations made to 501(c)(4)s are not tax-deductible. 501(c)(4) nonprofits can engage in political lobbying and campaign activities. They are not required to publicly disclose identifying information about their donors.

Examples of 501(c)(4)s include the American Civil Liberties Union (ACLU) and the National Rifle Association (NRA).

What does the bill propose?

HR7525 would amend the Internal Revenue Code as follows:

  • Limits a 501(c)(4)’s political spending to 10 percent of its total annual expenditures.
  • Repeals an existing cap on political organizations’ nonpolitical spending (thereby allowing organizations no longer recognized under Section 501(c)(4) to register as Section 527 entities).
  • Requires a 501(c)(4) that spends any amount of money on political purposes to disclose the identities of its donors who contributed $5,000 or more.

Political context

Golden was first elected to Congress in 2018, defeating then-incumbent Rep. Bruce Poliquin (R) 50.6 percent to 49.4 percent. Ballotpedia has designated this year’s general election for Maine’s 2nd Congressional District a battleground race. In the 2016 presidential contest, Donald Trump (R) defeated Hillary Clinton (D) 51 percent to 41 percent in the district.

Golden issued a press release on July 9, announcing the introduction of HR7525 as part of his 14-bill “Plan to Fix a Broken Washington.” Golden said, “If we’re ever going to make real progress on the issues that matter most to Mainers, we need to fix the entire system. Over the past year, I’ve been developing and identifying a set of proposals that will fight corruption and dark money in our politics, wrest power away from corporations and special interests, and help return power to regular people. I want people to have faith in the power of our democracy and our leaders again, and I’m hopeful these proposals will put us on that path.” In the press release, individuals from Maine Citizens for Clean Elections and the End Citizens United Action Fund registered their support for the plan.

The Institute for Free Speech makes the following argument against expanded donor disclosure requirements: “[Disclosure] laws … present significant First Amendment harms. If an individual’s personal information is reported to the government and then published on the internet for all to see, they are less likely to contribute, particularly if the speech they are supporting is unpopular or controversial. …Unfortunately, privacy from government disclosure laws for those engaged in issue speech is under attack. Politicians unhappy with that speech seek more and more disclosure rules that have little to do with fighting corruption.” No organized opposition to the legislation has yet appeared.

What comes next?

On July 9, HR7525 was referred to the House Committee on Ways and Means. Ways and Means has 42 members: 25 Democrats and 17 Republicans. The committee chairman is Richard Neal (D–Mass.). The ranking member is Kevin Brady (R–Texas). Neither the full committee nor any of its subcommittees has taken up the bill.

What we’ve been reading

The big picture

Number of relevant bills by state: We’re currently tracking 47 pieces of legislation dealing with donor disclosure. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.

Disclosure Digest map July 28, 2020.png

Number of relevant bills by current legislative status

Disclosure Digest status chart July 28, 2020.png

Number of relevant bills by partisan status of sponsor(s)

Disclosure Digest partisan chart July 28, 2020.png

Recent legislative actions

No legislative actions have been taken on relevant bills since our last issue.

Click here to learn more.



Union Station: July 2020

Welcome to Union Station, our weekly newsletter that keeps you abreast of the legislation, national trends, and public debate surrounding public-sector union policy.

Federal court dismisses Alaska state employee lawsuit over union dues payment practices

On July 15, a federal district court dismissed a lawsuit filed by two Alaska state employees over union dues payment practices limiting the period of time during which a member can withdraw his or her consent to having dues withdrawn from his or her paycheck.

Who are the parties to the suit?

The plaintiffs are Linda Creed, an employee of the Alaska Department of Environmental Conservation, and Tyler Riberio, an employee of the Alaska Department of Transportation. Attorneys from the Alaska Policy Forum and the Liberty Justice Center represent the plaintiffs.

The defendants are the Alaska State Employees Association (ASEA), an affiliate of the American Federation of State, County, and Municipal Employees, and Kelly Tshibaka, in her official capacity as commissioner of the Department of Administration.

What is at issue?

Alaska’s Public Employment Relations Act (PERA) allows for the automatic deduction of union dues or fees from an employee’s paycheck upon his or her written consent. The Alaska State Employees Association dues deduction authorization form establishes the following restrictions on rescinding the authorization:

“This voluntary authorization and assignment shall be irrevocable, regardless of whether I am or remain a member of ASEA, for a period of one year from the date of execution or until the termination date of the collective bargaining agreement (if there is one) between the Employer and the Union, whichever occurs sooner, and for year to year thereafter unless I give the Employer and the Union written notice of revocation not less than ten (10) days and not more than twenty (20) days before the end of any yearly period.”

The following is a timeline of the major events related to this lawsuit:

  • June 27, 2018: The U.S. Supreme Court ruled in Janus v. AFSCME, that public-sector unions cannot compel workers to pay fees to support non-political union activities (contract administration, grievance arbitration, etc.).
  • Aug. 27, 2019: Alaska Attorney General Kevin Clarkson (R) issued a formal opinion that, in light of Janus, the state must have an employee’s consent in order to deduct dues or fees from his or her paycheck.
  • Sept. 26, 2019: Pursuant to Clarkson’s opinion, Governor Mike Dunleavy (R) issued an administrative order directing Tshibaka to obtain consent from employees in order to continue dues deductions. Creed and Riberio withdrew their consent, and the state stopped deducting dues from their paychecks.
  • Oct. 3, 2019: A state trial court issued a temporary restraining order barring implementation of Dunleavy’s order. Dues deductions resumed for both Creed and Riberio.
  • March 16, 2020: The plaintiffs filed suit in the United States District Court for the District of Alaska, arguing that the existing restrictions violate their First Amendment rights. They asked for an injunction against the restrictions. They also sought restitution for dues paid to the union before Janus. They argued that their “consent to dues collection was not ‘freely given’ because it was given on an unconstitutional choice of either paying the union as a member or paying the union agency fees as a non-member.” The case was assigned to Judge H. Russel Holland, who was appointed to the court by President Ronald Reagan (R) in 1984.

How did the court rule? 

Holland granted ASEA’s motion to dismiss, ruling that the plaintiffs had voluntarily entered into their membership agreements, which are binding contracts:

“[Any] argument that the revocation window in plaintiffs’ contract is itself unconstitutional fails, and in fact, plaintiffs contend that they are not arguing that the revocation window is itself unconstitutional. Rather, they contend that they are arguing that they must be released from their authorizations outside the revocation window because the authorizations were invalid in the first place.”

“But … plaintiffs voluntarily agreed to join the union and have dues deducted from their paychecks. Their union membership agreements were binding contracts that remain enforceable even after Janus.”

Case information 

The plaintiffs have not indicated whether they intend to appeal Holland’s decision to the United States Court of Appeals for the Ninth Circuit. The case name and number are Creed v. Alaska State Employees Association, 3:20-cv-00065.

THE BIG PICTURE

Number of relevant bills by state

We are currently tracking 97 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s)

RECENT LEGISLATIVE ACTIONS

No legislative actions have been taken on relevant bills since our last issue.



Michigan Civil Service Commission approves union dues deduction rule change

Michigan Civil Service Commission approves rule change for deducting union dues from employee paychecks                 

On July 13, the Michigan Civil Service Commission voted 3-1 in favor of a rule change requiring unionized state employees to authorize union dues deductions from their paychecks on an annual basis. 

What is at issue?

Rule 6-7 of Michigan’s Civil Service Rules had allowed for the deduction of union dues from workers’ paychecks, subject to their consent. The rule did not establish an expiration date for dues deduction authorizations: 

“If agreed to in a collective bargaining agreement, the state may deduct the dues or service fee of a member of an exclusively represented bargaining unit through payroll deduction. An appointing authority cannot deduct membership dues or service fees unless the employee has made a voluntary authorization. The director shall establish the exclusive process for employees to authorize or deauthorize deduction of dues or fees.” 

Under the rule change which takes effect Sept. 1, workers must consent to dues deductions annually. If a worker does not authorize dues deductions between now and Sept. 1, dues deductions will be automatically cancelled. 

What is the Michigan Civil Service Commission, and how did the vote split? 

The Michigan Civil Service Commission is a state agency that regulates all conditions of employment for classified state employees. The governor appoints the commission’s four members to staggered eight-year terms. 

Gov. Rick Snyder (R) appointed all four current members of the commission. Three members – James Barrett, Jase Bolger, and Jeff Steffel – voted to approve the rule change. Commission chair Janet McClelland voted against it. Bolger and Barrett are registered with the Republican Party. Steffel and McClelland are registered independents.

What are the reactions? 

Support

  • Bolger said the rule change is a “protection of rights” for state employees: “I do not agree with claims that it impacts rights to collective bargaining. Instead, unions will be able to make their case, but I do believe it protects individual workers’ rights. Workers will remain free to make their choice.” 

Opposition

  • Ron Bieber, president of the Michigan affiliate of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), said, “This action has no other purpose than to impose arbitrary hardships on bargaining units, create turmoil in workplaces during a historic pandemic and a global recession, and disrupt the work that unions do on behalf of these state workers. It’s unconstitutional, it’s unsupported by any recent laws or court decisions, and it’s just plain wrong. They should be ashamed.

Relation to Janus v. AFSCME

  • Vincent Vernuccio, senior fellow for the Mackinac Center for Public Policy, discussed the rule change in relation to the Supreme Court’s 2018 decision in Janus v. AFSCME: “In 2018, the U.S. Supreme Court issued the [Janus] decision that did two things, both of which are being updated for the rule change here. The first, it basically gave right to work for state employees throughout the country. The second, in what Justice [Samuel] Alito called ‘affirmative consent,’ it required an opt-in provision to protect the public employees’ First Amendment rights.”
  • Chuck Browning, director of the United Auto Workers Region 1A, disputed the application of Janus as a justification for the rule change: “As the court itself noted, ‘States can keep their labor relations systems exactly as they are.’ Only that they don’t have to force non-members to subsidize public sector unions. Janus, therefore, does not justify the proposed rule change.”

What we’ve been reading 

The big picture

Number of relevant bills by state

We are currently tracking 97 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

No legislative actions have been taken on relevant bills since our last issue.

 



A closer look at Louisiana’s unique electoral system

In Louisiana, the candidate qualifying period opens on July 22 and closes on July 24. With the filing period upon us, the time is ripe for examining Louisiana’s one-of-a-kind system in greater depth, and for introducing Ballotpedia’s preferred term for the system: Louisiana majority-vote system.

How do elections work in Louisiana?

Louisiana’s electoral system for local, state, and federal offices differs markedly from those used in the other 49 states. In Louisiana, all candidates running for a local, state, or federal office appear on the same ballot in either October (in odd-numbered years) or November (in even-numbered years), regardless of their partisan affiliations. If a candidate wins a simple majority of all votes cast for the office being sought (i.e., 50 percent, plus one vote), he or she wins the election outright. If no candidate meets that threshold, the top two finishers, regardless of their partisan affiliations, advance to a second election in December. In that election, the candidate who receives the greatest number of votes wins.

What terms are used to describe this system?

The general public commonly refers to this electoral system as a “jungle primary.” But that term presents two problems. First, it has negative connotations. In this context, the adjectival use of “jungle” suggests disorderliness and chaos. Its use infers a negative judgment against the electoral system. Second, the term lacks descriptive force. It does little to explain the substance or function of the system it is used to describe.

Louisiana’s secretary of state describes the state’s electoral system as a “majority-vote primary paired with a plurality-vote general election:”

  • “All statewide and local candidates in Louisiana are elected by majority vote. A majority vote is one more than 50% of the total votes cast for that office. When one candidate is to be elected, a candidate who receives a majority of the votes cast for an office in a primary election is elected. If no candidate receives a majority, the top two candidates who receive the most votes advance to the general election.”
  • “The candidate who receives the most votes cast for an office in a general election is elected. If two or more offices are to be filled, those candidates receiving the highest total of votes are elected to the number of offices to be filled. If there is a tie vote among more candidates than offices to be filled, all candidates who received the highest number of tie votes advance to another election to be held on the 3rd Saturday after the promulgation of the election results.”

The term “majority-vote primary” is an improvement over “jungle primary.” It is neutral, and it more accurately describes how the system works. Still, this term is misleading because it uses the term “primary,” which is most precisely construed as an election used either to narrow the field of candidates for a given office or to determine the nominees for political parties in advance of a general election. Under this definition, a candidate cannot win election to an office outright in a primary. A candidate can only win an office in a general election. However, this is not the case in Louisiana. A candidate can win election outright in the first round of voting.

“Plurality-vote general election” does not clearly communicate the possibility of outright election in the first phase of the process (i.e., the November election). As such, it is misleading. Further, in most cases, the vote threshold for this election is effectively a simple majority (i.e, if only two candidates can advance to the general election, one of those candidates is practically guaranteed a majority share of the total vote).

How does Ballotpedia describe Louisiana’s electoral system?

In response to the shortcomings of the aforementioned existing terms, we call Louisiana’s electoral system the “Louisiana majority-vote system.”

This term hews closely to the terms presently used by the Louisiana secretary of state. However, it doesn’t use the misleading “primary” and “general” descriptors. Instead, it encompasses both phases of the process without obscuring the possibility of election in the first phase.

We can expand this term to accurately distinguish between the two phases of an election, as follows:

  • Louisiana majority-vote system, first round: This describes what has traditionally been referred to as the “jungle primary.”
  • Louisiana majority-vote system, second round: This describes what has traditionally been referred to as the “general,” “general runoff,” or “runoff” election.

For a more complete discussion of Louisiana’s electoral system and related, but distinct, concepts (e.g., top-two primaries and blanket primaries), see this article.

Absentee/mail-in voting modifications

Since our July 1 edition, we’ve tracked the following absentee/mail-in voting modifications:

  • Alabama: On July 2, the U.S. Supreme Court temporarily stayed a district court order barring Alabama election officials from enforcing witness and photo ID requirements for select voters casting absentee ballots in the July 14 runoff elections. A full appeal of the district court’s decision is pending before the United States Court of Appeals for the Eleventh Circuit.
  • Arkansas: On July 2, Gov. Asa Hutchinson (R) and Secretary of State John Thurston (R) announced that voters in the Nov. 3 general election would be allowed to cite concerns over COVID-19 as a valid excuse for voting absentee.
  • Delaware: On July 1, Gov. John Carney (D) signed HB346 into law, providing for the state election commission to automatically deliver a vote-by-mail application to every qualified voter in the 2020 primary, general, and special elections.
  • Maryland: On July 8, Gov. Larry Hogan (R) ordered the state board of elections to automatically send absentee/mail-in ballot request forms to all qualified voters in the Nov. 3 general election.
  • Massachusetts: On July 6, Gov. Charlie Baker (R) signed into law legislation extending vote-by-mail eligibility in the fall primary and general elections to all qualified voters.
  • South Carolina: On July 8, the South Carolina Election Commission announced that return postage for all mailed absentee ballots in the Nov. 3 general election would be prepaid.

To date, 35 states have modified their absentee/mail-in voting procedures. These modifications can be divided into five broad categories:

  • Automatic mail-in ballots: Four states (California, Montana, Nevada, and New Jersey) have opted to automatically send mail-in ballots to all eligible voters in certain elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below.
  • Automatic mail-in ballot applications: Sixteen states (Connecticut, Delaware, Georgia, Idaho, Illinois, Iowa, Maryland, Michigan, Nebraska, New Mexico, New York, North Dakota, Rhode Island, South Dakota, West Virginia, and Wisconsin) have opted to automatically send mail-in ballot applications to all eligible voters in certain elections. These states are shaded in dark blue in the map below.
  • Eligibility expansions: Ten states (Arkansas, Indiana, Kentucky, Massachusetts, Missouri, New Hampshire, Oklahoma, South Carolina, Tennessee, and Virginia) have expanded absentee voting eligibility in certain elections. These states are shaded in light blue in the map below.
  • Deadline extensions: Four states (Minnesota, Ohio, Pennsylvania, and Utah) have opted to extend absentee/mail-in ballot request or submission deadlines in certain elections. These states are shaded in dark gray in the map below.
  • Other process changes: One state ( North Carolina) has made other modifications to its absentee/mail-in ballot procedures in certain elections. This state is shaded in gray in the map below.
M3Ydp-absentee-mail-in-voting-procedure-changes-in-response-to-the-coronavirus-pandemic-2020 (9).png

Litigation tracking

To date, we have tracked 131 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. In each issue of The Ballot Bulletin, we shine a spotlight on what we consider one of the more interesting recent events in this area. Click here to view the complete list of lawsuits and court orders.

This week, we turn our attention to a case out of Alabama, Merrill v. People First of Alabama.

  • Case name: Merrill v. People First of Alabama
  • Case number: 19A1063 (district court case number: 2:20-cv-00619; appellate court case number: 20-12184)
  • State of origin: Alabama
  • Court: U.S. Supreme Court
  • Summary: On July 2, the U.S. Supreme Court temporarily stayed a district court order barring Alabama election officials from enforcing witness and photo ID requirements for select voters casting absentee ballots in the July 14 runoff elections. A full appeal of the district court’s decision is pending before the United States Court of Appeals for the Eleventh Circuit. The Supreme Court’s order was unsigned. However, it was noted that Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan voted to deny the state’s request to lift the district court’s injunction.
  • Court documents:

Legislation tracking

To date, we have tracked 255 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states

shaded in white, we have tracked no relevant bills.

Legislation related to elections and COVID-19, 2020

COVID-19 election bills July 15.png


Michigan Civil Service Commission considers changing rules for deducting union dues from employee paychecks

Michigan Civil Service Commission considers changing rules for deducting union dues from employee paychecks                 

The Michigan Civil Service Commission is considering a proposal that would require unionized state employees to authorize union dues deductions from their paychecks on an annual basis. 

What is at issue?

Rule 6-7 of Michigan’s Civil Service Rules provides for the deduction of union dues from workers’ paychecks, subject to their consent. The rule does not establish an expiration date for dues deduction authorizations: 

“If agreed to in a collective bargaining agreement, the state may deduct the dues or service fee of a member of an exclusively represented bargaining unit through payroll deduction. An appointing authority cannot deduct membership dues or service fees unless the employee has made a voluntary authorization. The director shall establish the exclusive process for employees to authorize or deauthorize deduction of dues or fees.” 

Under the proposal pending before the commission, workers would have to renew their authorizations annually. 

What is the Michigan Civil Service Commission? 

The Michigan Civil Service Commission is a state agency that regulates all conditions of employment for classified state employees. The commission comprises four members appointed by the governor to staggered eight-year terms. All four current members of the commission were appointed by former Gov. Rick Snyder (R).

What are the reactions? 

Support

  • The Mackinac Center for Public Policy supports the proposed rule. Jarret Skorup, a spokesman for the Mackinac Center, said, “Michigan became a right-to-work state in 2013, meaning no worker can be forced to pay money to a union in order to keep their job. The Janus decision in 2018 goes further – it allows for workers to have union dues withheld but says they must give ‘clear and compelling evidence’ that they consent to this. It’s not an ‘attack’ to require a political organization to regularly have to get members to sign up to pay their dues.” 
  • The National Right to Work Foundation supports the proposal. In a statement, the group’s president, Mark Mix, said, “The commission is taking an important step to proactively protect the First Amendment right of government workers in Michigan, many of whom may have only authorized dues deductions before the Supreme Court recognized those rights in the 2018 Janus decision, with many likely signing such cards before the Wolverine State adopted right-to-work, when such payments were mandatory.” 

Opposition

  • Gov. Gretchen Whitmer (D) opposes the rule change: “We are in the middle of a global pandemic and the worst economic crisis in our lifetimes, and the notion that Civil Service Commission would choose this moment to take power away from our health care workers, road repair workers, corrections officers, and unemployment call center employees is unthinkable.” 
  • State Rep. Terry Sabo (D) opposes the proposed rule: “The union provides services to its members to provide better wages, benefits and working conditions and nobody should be allowed to freeload in receiving those services. What is the benefit of making union members authorize over and over again other than to continue adding hurdles to union membership?”


What comes next? 

The Michigan Civil Service Commission is set to take a vote on the proposal at its next public meeting, scheduled for 10 a.m. on July 13. 

What we’ve been reading 

The big picture

Number of relevant bills by state

We are currently tracking 97 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue.

  • California AB2850: This bill would specify that the Public Employment Relations Board has jurisdiction to enforce statutory provisions governing employer-employee relations within the San Francisco Bay Area Rapid Transit District.
    • Democratic sponsorship.
    • Amended and re-referred to Labor, Public Employment, and Retirement Committee on July 8.


Recent SCOTUS actions involving COVID-19 and elections

On June 25 and June 26, the Supreme Court of the United States declined to intervene in two lawsuits involving COVID-19 and election administration. The first was a suit out of Ohio involving remote signature gathering for ballot initiatives. The second was a suit out of Texas dealing with absentee voting eligibility.

Thompson v. DeWine

On April 27, three registered Ohio voters and ballot initiative petition circulators (Chad Thompson, William Schmitt, and Don Keeney) filed suit against the state in federal district court, alleging that Ohio’s in-person signature collection and witnessing requirements for ballot measures were unconstitutional in light of the COVID-19 outbreak. The plaintiffs petitioned the court either to direct state officials to place the initiatives on the ballot directly or suspend prohibitions against remote signature collection and extend filing deadlines.

On May 19, Judge Edmund Sargus issued an order directing state officials to suspend enforcement of in-person signature requirements and extend filing deadlines for the initiative campaigns involved in the suit. Sargus wrote, “[This] court finds that in these unique historical circumstances of a global pandemic and the impact of Ohio’s stay-at-home orders, the state’s strict enforcement of the signature requirements for local initiatives and constitutional amendments severely burden plaintiffs’ First Amendment rights as applied here.”

On May 21, Ohio Attorney General Dave Yost (R) appealed that decision to the United States Court of Appeals for the Sixth Circuit. On May 26, a three-judge appellate panel, composed of Judges Jeffrey Sutton, David McKeague, and John Nalbandian, stayed the district court’s decision. In a per curiam opinion, the court wrote:

Whether this intermediate burden on plaintiffs’ First Amendment rights passes constitutional muster depends on whether the state has legitimate interests to impose the burden that outweigh it. Here they offer two. Defendants claim the witness and ink requirements help prevent fraud by ensuring that the signatures are authentic. And the deadlines allow them time to verify signatures in an orderly and fair fashion, while also providing initiative proponents time to challenge any adverse decision in court. These interests are not only legitimate, they are compelling.[1]

The plaintiffs appealed the appellate panel’s decision to the U.S. Supreme Court. On June 25, Associate Justice Sonia Sotomayor, who fields such requests for the Sixth Circuit, referred the matter to the full court, which declined to vacate the stay without noted dissent.

Texas Democratic Party v. Abbott

On May 19, Judge Samuel Biery, of the United States District Court for the Western District of Texas, ordered that all eligible Texas voters be allowed to cast absentee ballots in order to avoid transmission of COVID-19. In his opinion, Biery wrote, “The Texas Election Code allows citizens over 65 without a disability to vote by mail. Thus, the Texas vote-by-mail statute provides for the health safety of mail ballots for those 65 years of age and older but not those 64, 364 days and younger. The court finds no rational basis for such distinction and concludes the statute also violates the clear text of the Twenty-Sixth Amendment under a strict scrutiny analysis.” Biery also construed lack of immunity to, and fear and anxiety over, COVID-19 as disabilities within the context of the state election code and the state’s absentee voting eligibility criteria.

Texas Attorney General Ken Paxton (R) appealed the decision to the United States Court of Appeals for the Fifth Circuit. On June 4, a three-judge appellate panel stayed Biery’s order. Judge Jerry Edwin Smith wrote the following in the court’s opinion:

In an order that will be remembered more for audacity than legal reasoning, the district judge intervenes just weeks before an election, entering a sweeping preliminary injunction that requires state officials, inter alia, to distribute mail-in ballots to any eligible voter who wants one. But because the spread of the Virus has not given ‘unelected federal jud[ges]’ a roving commission to rewrite state election codes, we stay the preliminary injunction pending appeal.[1]

Judge James Ho wrote a concurring opinion. Judge Gregg Costa wrote an opinion concurring in the judgment only.

On June 16, the Democratic Party of Texas appealed the decision to the Supreme Court, asking that the court lift the appellate panel’s stay and set an expedited briefing schedule for consideration of the case. Justice Samuel Alito, who fields such requests for the Fifth Circuit, referred the matter to the full court, which declined to vacate the stay without noted dissent. Associate Justice Sonia Sotomayor issued a statement: “This application raises weighty but seemingly novel questions regarding the Twenty-Sixth Amendment. I do not disagree with the decision to refrain from addressing them for the first time here, in the context of an emergency application to vacate a stay of an injunction. But I hope that the Court of Appeals will consider the merits of the legal issues in this case well in advance of the November election.” The case now returns to the Fifth Circuit for further proceedings.

Absentee/mail-in voting modifications

Since our June 17 edition, we’ve tracked the following absentee/mail-in voting modifications:

  • New Mexico: On June 26, Gov. Michelle Lujan Grisham (D) signed SB4 into law, authorizing county clerks to mail absentee ballot applications automatically to registered, mailable voters in the Nov. 3 general election.
  • Texas: On June 26, the Supreme Court of the United States declined to reinstate a district court order that had expanded absentee voting eligibility in Texas, as noted above. An appeals court stayed the district court’s order, a decision that was allowed to stand as a result of the Supreme Court’s decision not to intervene.
  • Alabama: On June 25, a three-judge panel of the United States Court of Appeals for the Eleventh Circuit declined to stay a lower court order barring Alabama election officials from enforcing witness and photo ID requirements for select voters casting absentee ballots in the July 14 runoff elections.
  • Iowa: On June 25, Gov. Kim Reynolds (R) signed HF2486 into law, barring the secretary of state from mailing absentee ballot request forms to all voters without first obtaining approval from the state legislature. The legislation also barred county officials from decreasing the number of polling places by more than 35 percent during an election.
  • Tennessee: On June 24, the Tennessee Supreme Court declined to stay a lower court order that had extended absentee voting eligibility to all voters during the pandemic.
  • California: On June 18, Gov. Gavin Newsom (D) signed AB860 in law, requiring county election officials to mail absentee/mail-in ballots to all registered voters in the Nov. 3 general election. On May 8, Newsom had issued an executive order to the same effect.
  • Wisconsin: On June 17, the Wisconsin Election Commission voted unanimously to send absentee/mail-in ballot applications automatically to most registered voters in the Nov. 3 general election.

To date, 35 states have modified their absentee/mail-in voting procedures. These modifications can be divided into five broad categories:

  • Automatic mail-in ballots: Five states (California, Maryland, Montana, Nevada, and New Jersey) have opted to automatically send mail-in ballots to all eligible voters in certain elections to ensure that most voting takes place by mail. These states are shaded in yellow in the map below.
  • Automatic mail-in ballot applications: Fifteen states (Connecticut, Delaware, Georgia, Idaho, Illinois, Iowa, Michigan, Nebraska, New Mexico, New York, North Dakota, Rhode Island, South Dakota, West Virginia, and Wisconsin) have opted to automatically send mail-in ballot applications to all eligible voters in certain elections. These states are shaded in dark blue in the map below.
  • Eligibility expansions: Nine states (Indiana, Kentucky, Massachusetts, Missouri, New Hampshire, Oklahoma, South Carolina, Tennessee, and Virginia) have expanded absentee voting eligibility in certain elections. These states are shaded in light blue in the map below.
  • Deadline extensions: Four states (Minnesota, Ohio, Pennsylvania, and Utah) have opted to extend absentee/mail-in ballot request or submission deadlines in certain elections. These states are shaded in dark gray in the map below.
  • Other process changes: Two states (Alabama and North Carolina) have made other modifications to their absentee/mail-in ballot procedures in certain elections. These states are shaded in gray in the map below.
M3Ydp-absentee-mail-in-voting-procedure-changes-in-response-to-the-coronavirus-pandemic-2020 (8).png

Litigation tracking

To date, we have tracked 118 lawsuits and/or court orders involving election policy issues and the COVID-19 outbreak. In each issue of The Ballot Bulletin, we shine a spotlight on what we consider one of the more interesting recent events in this area. Click here to view the complete list of lawsuits and court orders.

This week, we turn our attention to a case out of Alabama, People First of Alabama v. Merrill.

  • Case name: People First of Alabama v. Merrill
  • Case number: 20-12184 (district court case number: 2:20-cv-00619)
  • State of origin: Alabama
  • Court: U.S. Court of Appeals for the Eleventh Circuit
  • Summary: On June 25, a three-judge panel of the United States Court of Appeals for the Eleventh Circuit declined to stay a lower court order barring election officials from enforcing witness and photo ID requirements for select voters casting absentee ballots in the July 14, 2020, runoff elections. The panel, comprising Judges Robin Rosenbaum, Jill Pryor, and Britt Grant, voted unanimously on the matter. The lower court had ordered the state to waive the witness requirement for any voter who provides a written statement, signed under penalty of perjury, that he or she suffers from an underlying medical condition that places the individual at higher risk for contracting a severe case of COVID-19. The lower court had also ordered the state to waive the photo ID requirement for any voter who is either over the age of 65 or disabled who signs a written statement to that effect. The lower court also enjoined the state from enforcing its de facto prohibition against curbside voting.
  • Court documents:

Legislation tracking

To date, we have tracked 237 bills that make some mention of both election policy and COVID-19. States with higher numbers of relevant bills are shaded in darker blue on the map below. States with lower numbers of relevant bills are shaded in lighter blue. In states shaded in white, we have tracked no relevant bills.

Legislation related to elections and COVID-19, 2020



Indiana attorney general issues opinion stating public-sector workers must be notified of rights before dues can be deducted from paychecks

On June 17, Indiana Attorney General Curtis Hill (R) issued an opinion stating that, “to the extent the state of Indiana or its political subdivisions collect union dues from its employees, they must provide adequate notice of their employees’ First Amendment rights against compelled speech.”

Attorney general opinions are advisory. They do not constitute an enactment of state policy: “The Advisory Division [of the office of the Indiana attorney general] does not make or recommend policy. Rather, it guides officials in their efforts to understand specific state statutes, policies and procedures.”

What did Hill say in his opinion?

Hill wrote, “A public employer has an affirmative duty to make public employees aware of their First Amendment rights related to automatic payroll deduction for union purposes. An employee has a fundamental right to elect to financially support a union, thereby affiliating and promoting a union’s speech and platform, or an employee may retain his or her First Amendment right to not associate with a labor union.”

Hill said that an employee can only give voluntary consent to dues deduction if “he or she is adequately advised that paying unions dues is not a condition of employment and that agreeing to pay dues is a waiver of one’s First Amendment right.”

Hill discussed the times and methods for changing dues deduction arrangements:

“To ensure the deduction of union dues or fees from an employee comports with the Janus framework and does not occur without clear and compelling evidence that the employee freely consents to the deduction, the State and its political subdivisions must require that employees provide the necessary consent directly to them. To ensure an employee’s consent is up-to-date, as required for it be a valid waiver of the employee’s First Amendment rights, an employee must be provided a regular opportunity to opt-in and opt-out.” Hill said that the state and its political subdivisions must permit employees to opt out of dues deduction systems at any time. Employers must also provide for annual opt-in periods.

Have other attorneys general issued similar opinions?

Attorneys general in Alaska and Texas have issued similar opinions in the wake of Janus. In Alaska, Indiana, and Texas, the attorneys general are Republicans. The states’ governments are Republican triplexes (i.e., they have Republican governors, secretaries of state, and attorneys general) and trifectas (i.e., they have Republican governors and Republican majorities in both chambers of their respective state legislatures).

What we’ve been reading

The big picture

Number of relevant bills by state

We are currently tracking 96 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.

Union Station map June 19, 2020.png

Number of relevant bills by current legislative status

Union Station status chart June 19, 2020.png

Number of relevant bills by partisan status of sponsor(s)

Union Station partisan chart June 19, 2020.png

Recent legislative actions

Below is a complete list of relevant legislative actions taken since our last issue.

  • New Hampshire HB1290: This bill would require the state public employee labor relations board to permit employees to vote by mail in certification elections.
    • Bipartisan sponsorship.
    • Introduced in the Senate and laid on the table June 16.
  • New Hampshire HB1322: This bill would prohibit university system funds from being used to oppose the formation of unions.
    • Democratic sponsorship.
    • Introduced in the Senate and laid on the table June 16.
  • New Hampshire HB1399: This bill would allow a bargaining unit to request certification of its union/representative.
    • Democratic sponsorship.
    • Introduced in the Senate and laid on the table June 16.
  • New Hampshire SB448: This bill would require the state public employee labor relations board to certify a union as a bargaining unit’s exclusive representative if that union receives a “majority written authorization.”
    • Democratic sponsorship.
    • Vacated from committee and laid on the table June 16.


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