Author

Jerrick Adams

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

Biden nominates Walsh as labor secretary

Biden nominates Boston Mayor Marty Walsh as labor secretary  

President-elect Joe Biden (D) announced last week that he would nominate Boston Mayor Marty Walsh for secretary of labor. Biden’s transition team said Walsh “has the necessary experience, relationships, and the trust of the President-elect to help workers recover from this historic economic downturn and usher in a new era of worker power.”

Walsh has served as the mayor of Boston since 2014. He was a member of the Massachusetts House of Representatives, chair of the Massachusetts Democratic Party Labor Caucus, and the co-chair of the Special Commission on Public Construction Reform. Walsh was also a union leader, serving as the head of the Laborers’ Union Local 223 and the Building and the Boston Metropolitan District Building Trades Council. 

The American Federation of State, County and Municipal Employees (AFSCME) said Walsh’s nomination “was especially welcomed by our union, as we threw our support behind the mayor soon after Biden won the election.” AFSCME President Lee Saunders said, “Secretary-designate Walsh understands the contributions public service workers make to the strength and vitality of our communities. On behalf of the 1.4 million AFSCME members, I am proud to support him and look forward to working with him.”

According to John Logan, a professor of labor and employment relations at San Francisco State University, Walsh “has supported many progressive causes, such as greater police accountability, declaring racism a public health issue, tackling wage theft, championing workplace safety in the construction industry, using city contracts to promote diversity, and pushing parental leave for city employees.” 

Logan says Walsh is “significantly more progressive than many former building trades officials” and says Walsh could “bridge the various sections of the labor movement, which is currently more divided than almost ever before. … The AFT, AFSCME, AFL-CIO, and building trades do not agree on too much; but they all agreed on Marty Walsh for Secretary of Labor.”

According to Politico, United Auto Workers, Utility Workers Union of America, National Nurses United, Communications Workers of America, and United Farm Workers of America backed other candidates for the position.

Sean Higgins, a research fellow at the Competitive Enterprise Institute, responded to the nomination, “Joe Biden’s decision to nominate Boston Mayor Marty Walsh as Labor Secretary will elevate a person to oversee the nation’s workplace who is not merely pro-union, but who sees the purpose of public office as working to represent the interests of unions. The interests of business leaders, entrepreneurs, independent workers and voters in general will take a back seat.” 

The last time a union member served as secretary of labor was in 1977, according to the Northwest Labor Press. W.J. Usery Jr. was a member of the International Association of Machinists and Aerospace Workers.

Biden and Walsh on public-sector unions and Janus v. AFSCME

Biden’s campaign website laid out the following labor policy priorities: 

As president, Biden will establish a federal right to union organizing and collective bargaining for all public sector employees, and make it easier for those employees who serve our communities to both join a union and bargain. He will do so by fighting for and signing into law the Public Safety Employer Employee Cooperation Act and Public Service Freedom to Negotiate Act. He will work to ensure public sector workers, including public school educators, have a greater voice in the decisions that impact their students and their working conditions. He will also strongly encourage states to pursue expanded bargaining rights for state licensed and contracted workers, including child care workers and home health care workers. And, he will look for federal solutions that will protect these workers’ rights to organize and bargain collectively.

In a 2019 Labor Day message, Walsh referenced the U.S. Supreme Court’s 2018 decision in Janus v. AFSCME

Janus was just the start. The regulators who killed overtime for low-income workers and let Walmart fire people for organizing? The trade wars that devastate truck drivers and farmers? The government shutdown that bankrupted federal employees and contractors? Their new plan is to deregulate apprenticeships — the hard-earned credential that your careers and paychecks are built on — turned into nothing more than a piece of paper. Who will be left to speak up for you, when your rights are gone?

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 26 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.

  • Maine LD52: This bill would allow educational policies related to preparation and planning time and transfer of teachers to be subjects of collective bargaining negotiations. 
    • Democratic sponsorship. 
    • Introduced and referred to Labor and Housing Committee Jan. 11. 
  • Maryland HB374: This bill would extend collective bargaining rights to faculty at Baltimore City Community College.
    • Democratic sponsorship.
    • Introduced Jan. 13. House Appropriations Committee hearing scheduled for Jan. 27.
  • Maryland SB9: This bill would make revisions to the collective bargaining process for employees of the University System of Maryland.    
    • Democratic sponsorship.
    • Introduced Jan. 13. Senate Finance Committee hearing scheduled for Feb. 4. 
  •  Maryland SB138: This bill would extend collective bargaining rights to employees of the Baltimore County Public Library.
    • Democratic sponsorship.
    • Senate Finance Committee hearing scheduled for Feb. 4.  
  • New Hampshire HB348: This bill would require a public employer to provide notice of a new or amended collective bargaining agreement.
    • Republican sponsorship.
    • Referred to House Labor, Industrial and Rehabilitative Services Committee on Jan. 9. 
  • New York A01804: This bill would alter resolution procedures for disputes that arise during collective bargaining between public-sector employers and unions.
    • Democratic sponsorship.
    • Introduced and referred to Assembly Governmental Employees Committee Jan. 11. 
  • Oregon HB2061: This bill would prohibit public employers and unions from entering into fair-share agreements.
    • Introduced Jan. 11.  
  • Oregon HB2270: This bill would amend the law’s definition of “employment relations” to include class size and caseload limits as mandatory collective bargaining subjects for school districts. 
    • Democratic sponsorship. 
    • Introduced Jan. 11.
  • Oregon SB580: This bill would amend the law’s definition of “employment relations” to include class size and caseload limits as mandatory collective bargaining subjects for school districts.  
    • Democratic sponsorship. 
    • Introduced Jan. 11.
  • Oregon SB679: This bill would amend the law’s definition of “employment relations” to include class size and caseload limits as mandatory collective bargaining subjects for school districts. 
    • Democratic sponsorship. 
    • Introduced Jan. 11.
  • Tennessee SJR0002: This bill proposes a constitutional amendment that would bar any person, corporation, or governmental entity from denying employment due to an individual’s affiliation status with a union or other employee organization.
    • Republican sponsorship.
    • Referred to Senate Judiciary Committee Jan. 13. 
  • Washington SB5055: This bill would prohibit law enforcement personnel from entering into collective bargaining agreements that prevent, prohibit, or otherwise alter local government ordinances or charters providing for “civilian review of law enforcement personnel.”
    • Democratic sponsorship. 
    • Senate Labor, Commerce, and Tribal Affairs Committee hearing held Jan. 14.
  • Washington SB5133: This bill amends the definition of a “confidential employee” for the purposes of collective bargaining.
    • Democratic sponsorship. 
    • Introduced Jan. 8; referred to Senate Labor, Commerce, and Tribal Affairs Committee Jan. 11. 


SCOTUS to take up donor disclosure appeal

Welcome back! Starting this week, we’ll be publishing this newsletter on a weekly basis. Today, we turn our attention to a pending U.S. Supreme Court case involving donor disclosure requirements in California.  

SCOTUS to take up donor disclosure appeal   

On Jan. 8, the U.S. Supreme Court announced it would hear an appeal involving a California law requiring nonprofits to disclose their donors’ identities to the state’s attorney general.  

What’s at issue, and how lower courts have ruled

California law requires nonprofits to file copies of their IRS 990 forms with the state. Schedule B of this form includes the names and addresses of all individuals who donated more than $5,000 to the nonprofit in a given tax year. The California law requires nonprofits to give the state copies of their Schedule B forms. Although the law does not allow the public access to Schedule B information, court documents indicate inadvertent disclosures have occurred.

In 2014, Americans for Prosperity Foundation (AFPF), a 501(c)(3) nonprofit, filed suit in U.S. district court, alleging the California law violated its First Amendment rights. In 2016, Judge Manuel Real of the U.S. District Court for the Central District of California found in favor of AFPF and barred the state from collecting the group’s Schedule B information. Real was appointed to the court by Lyndon Johnson (D).

In 2015, the Thomas More Law Center (TMLC), also a 501(c)(3) nonprofit, filed a similar suit in the same U.S. district court. In a separate 2016 ruling, Real also found in favor of TMLC and prevented the state from collecting the group’s Schedule B information.

The two suits were combined on appeal. A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit unanimously overturned Real’s rulings in 2018. Judges Raymond Fisher, Richard Paez, and Jacqueline Nguyen issued the ruling. Fisher and Paez are Bill Clinton (D) appointees. Barack Obama (D) appointed Nguyen. 

Writing for the court, Fisher said: 

It is clear that the disclosure requirement serves an important governmental interest. In Center for Competitive Politics, we recognized the [California] Attorney General’s argument that ‘there is a compelling law enforcement interest in the disclosure of the names of significant donors.’ The Attorney General observed that ‘such information is necessary to determine whether a charity is actually engaged in a charitable purpose, or is instead violating California law by engaging in self-dealing, improper loans, or other unfair business practices,’ and we agreed[.]

The plaintiffs petitioned the Ninth Circuit for en banc review. That petition was rejected March 29, 2019. On Aug. 26, 2019, the plaintiffs appealed to the Supreme Court.

Reactions   

Emily Seidel, CEO of Americans for Prosperity Foundation, praised the court’s decision to hear the case: 

Tens of thousands of Americans each year participate in AFPF’s educational programs, which inspire them to make a greater impact in their community and our country. Their rights — as well as the rights of every person who participates in organizations that seek to reform our justice system, protect the rights of our veterans, or make progress on other issues as diverse as Americans themselves — are at stake. The Court’s decision to hear the case signals the importance of these foundational civil liberties.

Xavier Becerra (D), California’s attorney general and Joe Biden’s (D) nominee for secretary of health and human services, defended the law in question:

California’s donor reporting rules simply require charities to provide the state, on a confidential basis, the same information about major donors that they already provide to the federal government. This information helps the state protect consumers from fraud and the misuse of their charitable contributions. We look forward to defending our rules before the Supreme Court.

What comes next

The Supreme Court has not yet scheduled oral arguments. The case name and docket number are Americans for Prosperity Foundation v. Becerra (19-251). 

The big picture

Number of relevant bills by state: We’re currently tracking eight 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. 

Number of relevant bills by current legislative status

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

Recent legislative actions

For complete information on all of the bills we are tracking, click here

  • Nebraska LB8: This bill would change the statutory definition of an “independent expenditure.” It would also alter reporting requirements for independent expenditures and electioneering communications.
    • Nonpartisan sponsorship (Nebraska legislators are elected in nonpartisan elections).
    • Introduced Jan. 7.
  • New Hampshire HB105: This bill would require that political contributions from domestic or foreign limited liability companies be allocated to their individual members for campaign finance reporting purposes.  
    • Democratic sponsorship. 
    • Introduced and referred to House Election Law Committee Jan. 6.
  • New York A00064: This bill would require district attorney candidates to disclose the acceptance of campaign contributions from law firms that represent defendants in criminal proceedings.
    • Democratic sponsorship. 
    • Introduced and referred to Assembly Election Law Committee Jan. 6.
  • New York A00447: This bill would require political candidates and committees to disclose identifying information for contributions from intermediaries.
    • Democratic sponsorship. 
    • Introduced and referred to Assembly Election Law Committee Jan. 6.
  • New York A01383: This bill would require financial disclosure of certain political contributions made by elected officials, including statewide executives, state legislators, and New York City officials.
    • Democratic sponsorship. 
    • Introduced and referred to Assembly Governmental Operations Committee Jan. 8.
  • New York S00352: This bill would require political candidates and committees to disclose identifying information for contributions from intermediaries.
    • Democratic sponsorship. 
    • Introduced and referred to Senate Elections Committee Jan. 6.
  • New York S00840: This bill would establish reporting requirements for transition and inaugural entities.
    • Democratic sponsorship. 
    • Introduced and referred to Senate Elections Committee Jan. 6.
  • New York S00941: This bill would require district attorney candidates to disclose the acceptance of campaign contributions from law firms that represent defendants in criminal proceedings.
    • Democratic sponsorship. 
    • Introduced and referred to Senate Elections Committee Jan. 6.

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



New York state court upholds ranked-choice voting for Feb. municipal special election in NYC

Ballot Bulletin by Ballotpedia

New York: State court upholds ranked-choice voting for Feb. municipal special election in NYC

On Dec. 16, 2020, a state trial court declined to block the implementation of ranked-choice voting in the municipal special election scheduled for Feb. 2. 

What’s at issue 

On Nov. 5, 2019, New York City voters approved a charter amendment providing for the use of ranked-choice voting in municipal primary and special elections for the following offices:

  • Mayor
  • Public advocate
  • Comptroller
  • Borough president
  • City council

Voters approved the charter amendment 73.61% to 26.39%. Now, voters can rank up to five candidates for a given office in order of preference. A candidate who wins a majority of first-preference votes wins the election outright. If no candidate wins a majority of first-preference votes, the candidate with the fewest first-preference votes is eliminated. First-preference votes cast for the failed candidate are eliminated, raising the second-preference choices indicated on those ballots. A new tally is conducted to determine whether any candidate has won a majority of the adjusted votes. The process repeats until a candidate wins an outright majority.

On Dec. 8, 2020, a group of plaintiffs, including several city council members, sued the New York City Board of Elections and the New York City Campaign Finance Board in the New York County Supreme Court, the trial court for Manhattan. The plaintiffs alleged the city’s “stated plan to use [ranked-choice voting] in violation of the City Charter’s requirements, if allowed to proceed, will deprive New York City’s limited-English proficient population of the right to vote for and elect candidates of their choice in violation of the Voting Rights Act.” The plaintiffs sought a temporary restraining order barring election officials from using ranked-choice voting, pending the development of a new rollout plan.

How the court ruled

On Dec. 16, Judge Carol Edmead rejected the plaintiffs’ request for a temporary restraining order. In her decision, Edmead first addressed questions over whether the court had jurisdiction to grant the plaintiffs’ requested remedy: 

As articulated by counsel for [the Defendants], CPLR § 6313(a) expressly provides that ‘[n]o temporary restraining order may be granted in an action…against a public officer, board or municipal corporation of the state to restrain the performance of statutory duties.’ Here, the Board of Elections is statutorily required by the New York City Charter §1057 (g) to use RCV with respect to ‘certain primary elections and elections for which nominations were made by independent nominating petitions,’ which would include the February 2, 2021 special election. As such, Defendants argue that this Court lacks jurisdiction to grant a stay. The Court notes that Plaintiffs do not concede that this Court lacks jurisdiction to grant an interim stay under CPLR § 6313(a) nor do they agree that this jurisdictional issue is not in dispute. However, as the issue of jurisdiction is yet unresolved, the Court is disinclined to grant an interim stay. 

Edmead also declined the plaintiffs’ request for an expedited hearing schedule: 

According to counsel for Defendants, the overseas ballots are scheduled to be dispersed in two days on December 18, 2020. The Court finds that it would be improvident to hold an expedited preliminary injunction hearing as it may delay the dispersing of the overseas ballots.

What comes next? 

On Dec. 17, 2020, the plaintiffs appealed Edmead’s decision to the Appellate Division of the Supreme Court of the State of New York, First Judicial Department. The appellate court has not yet taken any action on the appeal. 

The case name and number are Adams v. New York City (appellate court: pending; trial court: 160662/2020). 


Calif.: Appeals court affirms lower court ruling requiring district-based city council elections in Santa Clara

On Dec. 30, the California Sixth District Court of Appeal upheld a lower court’s ruling that Santa Clara’s at-large electoral system for city council seats violated the California Voting Rights Act. 

What’s at issue 

Section 14027 of the California Voting Rights Act provides that “an at-large method of election may not be imposed or applied in a manner that impairs the ability of a protected class to elect candidates of its choice or its ability to influence the outcome of an election, as a result of the dilution or the abridgment of the rights of voters who are members of a protected class.” 

On Dec. 27, 2017, five Asian-American residents of Santa Clara sued the city in the Santa Clara County Superior Court, alleging that the at-large election system for city council seats violated Section 14027 of the California Voting Rights Act. Asian-Americans are a protected class under Section 14026 of that act. 

On June 16, 2018, Judge Thomas E. Kuhnle ruled in favor of the plaintiffs, finding the city liable for violating the act. The defendants appealed Kuhnle’s decision to the Sixth District Court of Appeal, arguing Kuhnle had “erred as a matter of law in concluding that racially polarized voting in five of 10 city council elections satisfied the standard for a cognizable voting rights claim, which requires a showing that the majority voting bloc in Santa Clara’s electorate ‘usually’ voted to defeat the candidate preferred by Asian-American voters.” 

In their appeal, the defendants cited the U.S. Supreme Court’s 1986 decision in Thornburg v. Gingles, which established the following criteria for proving vote dilution claims under the federal Voting Rights Act: 

  1. A minority group must demonstrate that it is large and compact enough to constitute a majority in a single-member district.
  2. A minority group must demonstrate that it is politically cohesive.
  3. A minority group must demonstrate that the majority group usually votes as a group to defeat the minority group’s preferred candidate.

The Sixth District heard oral argument in the case on Dec. 17, 2020. 

How the court ruled

A three-judge panel of the Sixth District unanimously affirmed the lower court’s decision. Judge Eugene Premo wrote the court’s opinion, which Judges Franklin Elia and Allison M. Danner joined. 

The City argues that apart from case law, simple logic contravenes the trial court’s application of the third Gingles factor. The City asserts that just as ‘[n]o one would say that a flipped coin “usually” lands on heads, because it is equally likely to land on tails,’ it cannot be said that Santa Clara’s city council elections are ‘usually’ characterized by racially polarized voting after the trial court found that to be true in only five of 10 elections. We find the City’s reasoning is sound in theory but flawed in practice. It ignores that whether a majority voting block is ‘usually’ able to defeat a cohesive minority group’s preferred candidate per Gingles third factor is not measured by mathematical formula but by the trial court’s searching assessment of statistical and other evidence presented. … It follows that the ‘usually’ threshold stated in the third Gingles factor does not as a matter of law preclude a determination of racially polarized voting when the factual findings point to an equal number of polarized and non-polarized elections over time.

Premo and Elia are Gov. George Deukmejian (R) appointees. Danner is a Gov. Jerry Brown (D) appointee. 

What comes next? 

Santa Clara City Attorney Brian Doyle said he was “obviously and understandably disappointed in the ruling.” He did not say whether the city would appeal the decision further.  

The case name and number are Yumori-Kaku et al. v. City of Santa Clara (appellate court: H046105; trial court: CV319862). 


Looking ahead: election policy legislation in 2021

With a new year underway, and state legislatures nationwide convening sessions over the next several weeks, let’s take a preliminary look at what kinds of election policy bills will be up for consideration this year.

Redistricting legislation: So far this year, we’ve tracked at least 16 redistricting-related bills up for consideration in state legislatures: four in New Jersey; three in New York; two each in Tennessee, Texas, Virginia, and Washington; and one in Indiana. 

Redistricting legislation in the United States, 2021 
Current as of Jan. 5, 2021

Electoral systems legislation: So far this year, we’ve tracked at least 22 bills dealing with electoral systems that are up for consideration in state legislatures: eight in New Jersey; three each in New York, Missouri, and Virginia; and one each in Florida, Oklahoma, South Carolina, Texas, and Utah. 

Electoral systems legislation in the United States, 2021 
Current as of Jan. 5, 2021

Primary systems legislation: So far this year, we’ve tracked at least two bills dealing with primary systems that are up for consideration in state legislatures: one each in New Jersey and Virginia. 

Primary systems legislation in the United States, 2021 
Current as of Jan. 5, 2021



Union Station—2020: the legislative year in review

2020: the legislative year in review    

This being our last issue of the year, let’s take a look back at the public-sector labor bills that lawmakers nationwide considered this year.

Our next edition will come out on Jan.  8, 2021. Until then, happy holidays! 

How many bills were introduced, and what happened to them  

State legislatures either introduced or carried over from previous sessions 102 bills involving some aspect of public-sector labor policy. 

As of Dec. 11: 

  • 5 bills have been enacted into law.
  • 4 bills have passed lower chambers, but have not yet passed upper chambers. 
  • 77 are pending in committees. 
    • Most of these bills will die in committee at the end of the year. Bills in New Jersey and Virginia may carry over into the 2021 session. 
  • 16 have died in committee. 

How this compares with 2019: In 2019, state legislatures either introduced or carried over from previous sessions 107 relevant bills. Nine of these were enacted into law, four were vetoed, and the remainder either died in committee or carried over to the next sessions. 

Where bills were introduced   

Lawmakers in 30 states introduced public-sector labor bills in 2020. In eight of these states, lawmakers introduced five or more relevant bills: 

  • Pennsylvania: 10 bills
  • Oklahoma and Washington: 8 bills
  • Maryland and Virginia: 7 bills
  • California and New Hampshire: 6 bills
  • Iowa: 5 bills

How this compares with 2019: In 2019, lawmakers in 31 states introduced relevant bills. In six of those states, lawmakers introduced five or more relevant bills: Oregon (10 bills), Pennsylvania (9 bills), Washington (8 bills), Massachusetts (6 bills), New Hampshire (6 bills), and Oklahoma (5 bills). 

Who introduced bills

In 2020, Democrats introduced 52 of the 102 relevant bills we tracked this year. Republicans sponsored 37 bills. Bipartisan groups or committees introduced the remaining 13 bills. 

How this compares with 2019: In 2019, Democrats introduced 55 of the 107 bills we tracked. Republicans sponsored 39 bills, and bipartisan groups or committees sponsored the remaining 13 bills. 

Enacted legislation   

Four states have enacted five bills this year. Three of these states – California, Virginia, and Washington – are Democratic trifectas, meaning Democrats control the governorship and both chambers of the state legislature. Vermont has a divided government. 

  • California AB2850: Grants the Public Employment Relations Board the jurisdiction to enforce statutory provisions governing employer-employee relations within the San Francisco Bay Area Rapid Transit District.
    • Democratic sponsorship.
  • Vermont S0254: Requires public employers to provide unions with employee contact information. Provides for the automatic deduction of union dues from members’ paychecks, and permits unions to meet with new employees to provide them with information regarding union membership.
    • Democratic sponsorship.
  • Virginia HB582: Repealed the previous ban on public employee collective bargaining.
  • Virginia SB939: Permits local governments to recognize unions as bargaining agents for public-sector workers.
    • Democratic sponsorship.
  • Washington HB2017: Establishes collective bargaining rights for administrative law judges.
    • Democratic sponsorship.

What we’re reading



First Circuit: New Hampshire workers not entitled to refunds for previously paid union fees

First Circuit: New Hampshire workers not entitled to refunds for previously paid union fees          

On Nov. 30, a three-judge panel of the U.S. Court of Appeals for the First Circuit ruled that public-sector unions are not liable for refunding fees paid by non-members before Janus v. AFSCME.

Parties to the lawsuit  

The plaintiffs are Patrick Doughty and Randy Severance, New Hampshire state workers. Attorneys from the National Right to Work Legal Defense Foundation represent the plaintiffs. The defendant is the State Employee’s Association of New Hampshire (SEA). 

What’s at issue, and how the lower court ruled   

On Jan. 14, 2019, Doughty and Severance filed a class-action lawsuit against SEA in the U.S. District Court for the District of New Hampshire. Doughty and Severance alleged that SEA had violated their First and Fourteenth Amendment rights “not to associate with or financially support a labor organization and its affiliates as a condition of employment, without their affirmative consent and knowing waiver of their First Amendment rights.” They asked that the court order SEA to refund all agency fees that they and others (i.e., non-member employees) had paid before Janus v. AFSCME

The plaintiffs cited 42 U.S.C. § 1983, a federal statute establishing that any person who, “under color of any statute, ordinance, regulation, custom, or usage, of any state or territory,” deprives a U.S. citizen of his or her constitutional rights can be held liable in a court of law. 

SEA moved to dismiss the suit.  On June 6, 2019, Judge Paul Barbadoro, a George H.W. Bush (R) appointee, granted SEA’s motion to dismiss, ruling that SEA had deducted the disputed fees in good faith under the then-controlling precedent established by Abood v. Detroit Board of Education

About Janus and Abood: On June 27, 2018, the U.S. Supreme Court  issued its 5-4 decision in Janus v. AFSCME, ruling that public-sector unions cannot compel the non-member employees they represent to pay fees to cover the costs of non-political union activities. This decision overturned the precedent established in Abood v. Detroit Board of Education in 1977. In Abood, the U.S. Supreme Court held that it was not a violation of employees’ free-speech and associational rights to require them to pay fees to support union activities from which they benefited (e.g., collective bargaining, contract administration, etc.). These fees were commonly referred to as agency fees or fair-share fees

How the First Circuit ruled


On Nov. 30, the three-judge panel unanimously upheld the lower court’s decision. Writing for the court, Judge David Barron, a Barack Obama (D) appointee, said

[A]lthough Doughty and Severance assert that their claim for damages seeks to vindicate their First Amendment right against compelled speech and association and that this right provides protection from harm that the common law itself did not, they ignore the unusual nature of their attempt to secure relief for the violation of that constitutional right. They thus develop  no argument — nor does any occur to us — why close attention to the values and purposes of the First Amendment right against compelled speech and association supports the conclusion that the Congress that enacted § 1983 must have meant to create a claim for damages for its retroactive violation when the violation results in payments made pursuant to a lawful-when-invoked, state-backed process.

Judges Jeffrey R. Howard and O. Rogeriee Thompson, George W. Bush (R) and Obama (D) appointees, respectively, joined Barron’s opinion.

What comes next?   

Patrick Semmens, vice president of the National Right to Work Legal Defense Foundation, said his group would appeal the decision to the U.S. Supreme Court.  

The case  name and number are Doughty v. State Employees’ Association of New Hampshire (19-1636).

What we’re reading

The big picture

Number of relevant bill by state

We are currently tracking 102 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 bill by current legislative status

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

Recent legislative actions

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



Ballot Bulletin: Thirty-seven states, D.C. certify their election results

Ballot Bulletin by Ballotpedia

As of Dec. 2, 37 states and the District of Columbia have certified their election results. What does this mean, and how does it relate to the finalization of the presidential election? We tackle those questions in this week’s edition. 

What it means for election results to be certified 

The election results states and localities report after polls close on Election Day are preliminary returns. These initial counts are not the official results of the election. First, election officials at the local and state levels must canvass the returns to verify that each ballot cast in the election has been correctly counted. When the canvass is completed, officials must certify, or make official, the results of the election. 

Canvassing and certification are interrelated processes, and the terms are sometimes used interchangeably. We are focusing on the certification process specifically. 

States that have certified their results

To date, 37 states and the District of Columbia have certified their election results. These states are shaded blue on the map below.

These states have a total of 316 Electoral College electors, 148 of whom are pledged to President-elect Joe Biden (D). The remainder (168) are pledged to President Donald Trump (R).

What comes next? 

The following states will certify their results in the next two weeks. Certification deadlines, where available, are provided (as are Electoral College votes and projected winners):  

  • California: Dec. 11 (55; Biden)
  • Connecticut: Dec. 3 (7; Biden)
  • Hawaii: Not specified (4; Biden)
  • Illinois: Dec. 4 (20; Biden)
  • Maryland: Dec. 8 (10; Biden)
  • Missouri: Dec. 8 (10; Trump)
  • New Jersey: Dec. 8 (14; Biden)
  • New York: Dec. 7 (29; Biden)
  • Oregon: Dec. 3 (7; Biden)
  • Tennessee: Not specified (11; Trump)
  • Texas: Dec. 3 (38; Trump)
  • Washington:Dec. 3 (12; Biden)
  • West Virginia: Dec. 3 (5; Trump)

Federal law requires states to appoint their slates of Electoral College electors and settle any disputes related to the presidential election by Dec. 8. This is referred to as the safe-harbor provision

The 538 members of the Electoral College will meet in their respective state capitals on Dec. 14 to cast their votes. On Jan. 6, 2021, the newly elected Congress convenes in a joint session to count the electoral votes. 

Members of Congress can object to the results. If both a House and Senate member make a written objection to a state’s results, Congress will debate and vote on the objection’s merit. Electoral votes can be excluded only if both chambers vote to accept the objection. If a ticket receives 270 electoral votes(a majority of the 538 members of the Electoral College)the vice president (acting as Senate president) formally declares that individual winner of the election. 

For more information about these key dates and deadlines, see this article


Litigation update: Donald J. Trump for President, Inc. v. Boockvar


On Nov. 27, a three-judge panel of the U.S. Court of Appeals for the Third Circuit unanimously declined to postpone certification of the state’s election results, rejecting the Trump campaign’s claims of widespread voting irregularities.

What’s at issue, and how the lower court ruled 

On Nov. 9, the Trump campaign sued Secretary of the Commonwealth Kathy Boockvar (D) and several county-level officials, alleging multiple violations of the state election code and the U.S. Constitution. In their complaint, attorneys for the campaign said:

Plaintiffs seek an emergency order prohibiting Defendants from certifying the results of the General Election. In the alternative, Plaintiffs seek an emergency order prohibiting Defendants from certifying any results from the General Election that included the tabulation of absentee and mail-in ballots which do not comply with the Election Code, including, without limitation, the tabulation of absentee and mail-in ballots Trump Campaign’s watchers were prevented from observing or based on the tabulation of invalidly cast absentee and mail-in ballots which (i) lack a secrecy envelope, or contain on that envelope any text, mark, or symbol which reveals the elector’s identity, political affiliation, or candidate preference, (ii) do not include on the outside envelope a completed declaration that is dated and signed by the elector, or (iii) are delivered in-person by third parties for non-disabled voters. Lastly and in addition to the alternative requests for relief, Plaintiffs seek a permanent injunction requiring the County Election Boards to invalidate ballots cast by voters who were notified and given an opportunity to cure their invalidly cast mail-in ballot.

U.S. District Court Judge Matthew Brann heard oral arguments on Nov. 17. On Nov. 21, Brann dismissed the lawsuit, finding that the Trump campaign had presented “strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence.”

On Nov. 22, the Trump campaign appealed Brann’s decision to the Third Circuit, asking that the court postpone the certification of election results pending further court proceedings. The Third Circuit set an expedited schedule for considering the appeal.

How the court ruled 

On Nov. 27, a three-judge panel of the Third Circuit unanimously denied the Trump campaign’s request. Judge Stephanos Bibas (a Trump appointee) wrote for the court:

The campaign’s claims have no merit. The number of ballots it specifically challenges is far smaller than the roughly 81,000-vote margin of victory. And it never claims fraud or that any votes were cast by illegal voters. Plus, tossing out millions of mail-in ballots would be drastic and unprecedented, disenfranchising a huge swath of the electorate and upsetting all down-ballot races too. That remedy would be grossly disproportionate to the procedural challenges raised. So we deny the motion for an injunction pending appeal.

Judges Brooks Smith and Michael Chagares, both George W. Bush (R) appointees,  joined Bibas’ opinion. 

What comes next? 
Attorneys for the Trump campaign said they intended to appeal the Third Circuit’s decision to the U.S. Supreme Court. A formal filing had not been made as of Dec. 2.



Ballotpedia has tracked 132 lawsuits regarding public-sector union policy since Janus decision

On June 27, 2018, the Supreme Court of the United States issued its decision in Janus v. American Federation of State, County, and Municipal Employees (Janus v. AFSCME), ruling that public-sector unions cannot compel non-member employees to pay fees covering the costs of non-political union activities. This decision overturned precedent established in Abood v. Detroit Board of Education in 1977.

In the wake of Janus, individuals and advocacy groups across the nation have filed over 100 new lawsuits involving a wide array of public-sector labor laws and union practices. To date, we have tracked 132 post-Janus lawsuits. At least 58 of these lawsuits involve attempts to obtain refunds for fees that employees had to pay to unions prior to Janus. At least 57 involve challenges to membership withdrawal procedures (namely, laws or policies that allow union members to resign their membership only during specified periods of times).

Of these 132 lawsuits, 129 have been filed in the federal courts. Fifty-five suits have been filed in the Ninth Circuit alone, 42.7% of all federal post-Janus lawsuits. The Ninth Circuit encompasses federal district courts in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. The Third Circuit has seen the second-greatest number of post-Janus lawsuits: 22, or 17% of the total. The Third Circuit’s jurisdiction encompasses Delaware, New Jersey, and Pennsylvania.

Additional reading: 



37 states modified absentee/mail-in voting procedures in Nov. 3 elections

The November 3, 2020, general elections included races for president, 35 U.S. Senate seats, 435 U.S. House of Representatives seats, 120 statewide ballot measures, 165 state executive offices, state legislative seats in 86 chambers, and thousands of local offices and ballot measures.

All told, 37 states modified their absentee/mail-in voting procedures for the general election. These modifications can be divided into five broad categories. Here’s a recap of all of the changes made throughout 2020.

Automatic absentee/mail-in ballots: Five states (California, Montana, Nevada, New Jersey, and Vermont) automatically sent absentee/mail-in ballots to all eligible voters.

Automatic mail-in ballot applications: Eleven states (Connecticut, Delaware, Illinois, Iowa, Maryland, Michigan, Nebraska, New Mexico, Rhode Island, South Dakota, and Wisconsin) automatically sent absentee/mail-in ballot applications to all eligible voters.

Eligibility expansions: Twelve states (Alabama, Arkansas, Kentucky, Louisiana, Massachusetts, Missouri, New Hampshire, New York, Oklahoma, South Carolina, Tennessee, and West Virginia) expanded absentee/mail-in voting eligibility.

Deadline extensions: Five states (Maine, Minnesota, Mississippi, North Carolina, and Pennsylvania) extended absentee/mail-in ballot application or submission deadlines.

Other process changes: Four states (Alaska, Ohio, Texas, and Virginia) made other modifications to their absentee/mail-in ballot procedures.

Additional reading:



Expected census delays may postpone state redistricting efforts in 2021

On Nov. 19, U.S. Census Bureau Director Steve Dillingham announced that, “during post-collection processing, certain processing anomalies have been discovered” in the 2020 United States Census. Dillingham said he had directed the bureau “to utilize all resources available to resolve this as expeditiously as possible.” Also on Nov. 19, The New York Times reported that “a growing number of snags in the massive data-processing operation that generates population totals had delayed the completion of population calculations at least until Jan. 26, [2021], and perhaps to mid-February.”

This expected delay could postpone state redistricting efforts in 2021. At least one state (California) has already extended its redistricting deadlines in light of the uncertainty surrounding the conclusion of the census. On July 17, the California Supreme Court unanimously ordered 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 census, apportionment, and redistricting: Every ten years, the United States conducts the census, a complete count of the U.S. population. Census results determine congressional apportionment (i.e., the number of seats each state has in the U.S. House of Representatives). Because the U.S. Constitution requires that seats in the House be apportioned to the states on the basis of population, a state can gain seats if its population grows or lose seats if its population decreases, relative to populations in other states.

Federal law requires congressional and legislative districts to have substantively equal populations. States use census data during their redistricting processes to ensure compliance with this requirement. The standard census timeline calls for the bureau to submit apportionment counts to the President by Dec. 31 and redistricting data to the states by April 1, 2021.

In the 2010 cycle, redistricting authorities enacted 43 new congressional district maps and 50 new state legislative district maps. The majority of these – 63 maps (31 congressional and 32 state legislative), 67.74 percent of the total– were enacted in 2011. In 2012, 28 maps (12 congressional and 16 state legislative) were enacted, 30.11 percent of the total. The remaining maps were enacted in the first six months of 2013.

Additional reading:



Missouri Supreme Court weighs challenge to public-sector labor laws

Missouri Supreme Court weighs challenge to public-sector labor laws           

On Nov. 16, the Missouri Supreme Court heard oral arguments in a challenge to HB1413, a 2018 bill that made several changes to the state’s public-sector labor laws.

Who are the parties to the suit?  

The plaintiffs are: 

  • Missouri Education Association
  • Ferguson-Florissant Education Association
  • Hazelwood Association of Support Personnel
  • Service Employees International Union Local 1
  • Laborers’ International Union of North American Local 42
  • International Brotherhood of Teamsters Local 610
  • International Union of Operating Engineers Local 148

The defendants include several state and municipal government entities, including the Missouri Department of Labor and Industrial Relations and the State Board of Mediation. 

What’s at issue?   

On June 1, 2018, Gov. Eric Greitens (R) signed HB1413 into law. The omnibus legislation made several changes to the state’s public-sector labor laws: 

  • Requires annual authorization for union dues payroll deductions.
  • Requires unions to file annual financial reports and make financial records available to the public. 
  • Requires unions to submit to certification elections before the State Board of Mediation in order to be recognized as the representative of a group of public employees. Requires unions to be recertified every three years. 
  • Makes all collective bargaining agreements subject to certain limitations, including:
    • “Management reserving the right to hire, discipline, and discharge employees [and] reserving the right to make and amend reasonable work rules”
    • “Prohibiting all strikes and picketing”
    • “Extending the duty of fair representation to all employees of the bargaining unit”
    • “Prohibiting labor organization employees from accepting paid time by a public body for conducting labor organization business with certain exceptions”
    • “Providing for the modification of the agreement in the event of a budget shortfall”

The plaintiff unions sued in state court, alleging “HB1413’s draconian restrictions on public-sector collective bargaining are incompatible with Article I, Section 29 of the [Missouri] Constitution, which expressly guarantees the right of employees ‘to organize and bargain collectively’ and to do so ‘through representatives of their own choosing.’” On Jan. 27, Judge Joseph Walsh of the St. Louis County Circuit Court ruled in the unions’ favor. The state appealed to the Missouri Supreme Court.

What are the arguments?


Missouri Attorney General Eric Schmitt (R), in his brief on behalf of the state defendants, wrote: 

[No] provision of HB 1413 violates employees’ right to ‘bargain collectively’ with ‘representatives of their own choosing’ under Article I, § 29. Contrary to the Constitution’s plain language and this Court’s cases, the trial court fundamentally misunderstood Section 29 by interpreting it to guarantee certain outcomes of bargaining, instead of the process of negotiation. The provisions of HB1413 do not affect any public employee’s ability to engage in collective bargaining, and they affirmatively protect employees’ ability to choose their own representatives through meaningful, democratically accountable procedures. [emphasis in the original]

Jason Walta, a National Education Association lawyer and lead counsel for the plaintiffs, wrote in his brief

Not only are HB 1413’s burdens severe, they are discriminatory. Unlike any other regulation of public-sector collective bargaining in existence, HB 1413 grants or withholds public employees’ bargaining and speech rights based entirely on the identity of the union those employees decide to associate with and select as their bargaining representative. If they select a union that the Legislature sought to favor, HB 1413 imposes no restrictions on their collective bargaining or speech rights. If they select a union the Legislature sought to penalize, HB1413 renders collective bargaining a farce and saddles them and their union with onerous restrictions on speech and association.

Case and court information   

The case name and number are Missouri National Education Association v. Missouri Department of Labor and Industrial Relations, SC98412.

The Missouri Supreme Court is the state’s court of last resort. Democratic governors appointed four of the court’s seven justices: Chief Justice George Draper and Justices Mary Rhodes Russell, Laura Denvir Stith, and Paul C. Wilson. Republican governors appointed the three remaining justices: Zel Fischer, Patricia Breckenridge, and Wesley Brent Powell.  

What we’re reading

The big picture

Number of relevant bill by state

We are currently tracking 102 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 bill by current legislative status

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

Recent legislative actions

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



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