Ballot initiative would neuter 'card check' in Colorado

Face The State Staff Report

Unions have challenged the language of a ballot initiative that would amend the Colorado Constitution to guarantee employees' right to a secret ballot in unionization elections. Meanwhile, legislation is pending before Congress that would remove that requirement from federal law.

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U.S. Sen. Michael Bennet, at left, is under heavy pressure from organized labor to support the Employee Free Choice Act.

“The purpose for this amendment is to guarantee the fundamental right of an individual to vote by secret ballot,” said Patrick Davis, a Colorado Springs political consultant backing the measure.

The Employee Free Choice Act would repeal federal requirements for private voting and clear the way for a method called “card check.” Workers would still have a choice to opt for a secret ballot election, but unions are unlikely to back such a move. Since signature cards may be filled out anywhere and may take various forms, critics are concerned the process is more susceptible to fraud and intimidation.

Davis and former congressional candidate Jeff Crank founded the Colorado chapter of Save Our Secret Ballot; the group is organizing a campaign aimed at amending the state constitution to preserve employees’ right to a private vote. The legal theory is that states may provide greater worker protections than are established in federal law, so long as the requirements are not in direct conflict. The proposed constitutional language takes the secret-ballot option and returns it to a guarantee.

The 39-word proposal reads, “The right of individuals to vote by secret ballot is fundamental. Where state or federal law requires or permits elections or designations or authorizations of employee representation, the right of individuals to vote by secret ballot shall be guaranteed.”

A state board has approved a title for the initiative, which is now being challenged by organized labor. Opening briefs are due to the Colorado Supreme Court today. Democrat attorney Mark Grueskin, who litigated elections issues for labor in 2008, is handling the challenge on behalf of Philip Hayes of the AFL-CIO. The union alleges the ballot language violates the singles subject rule, a constitutional requirement that amendments address only one topic so as not to confuse voters.

Should the title and language be cleared by the state Supreme Court, the campaign will then be allowed to circulate its petition and gather signatures.

“This is a short common sense language,” Davis said. “We don’t expect the court to give us much trouble.”

Some members of the business community are concerned about further backlash from unions should the initiative campaign move forward. Tony Gagliardi, state director for the National Federation of Independent Business, said he’s been hearing the powerful business coalition Colorado Concern is worried that Save Our Secret Ballot could provoke another fight between business and labor as was the case in 2008.

During the last election cycle, Amendment 47, which would have granted workers the right to employment without a union contract, prompted labor interests to introduce four anti-business ballot initiatives. Back room negotiations to pull all the proposals ensued, with a deal emerging where Colorado Concern agreed to pay labor unions $3 million in exchange for their pulling their measures. Amendment 47 was ultimately defeated by voters.

Janice Sinden, executive director of Colorado Concern, says her group's focus is currently on the bill in Congress, though they are keeping an eye on the initiative. “Our organization is committed to fighting EFCA effort at the federal level,” she said. “We just believe all energy needs to be focused on defeating that.”

If both EFCA and Save Our Secret Ballot were to become law, Davis says a lawsuit would likely follow with the courts deciding whether a state constitutional amendment is compatible with the federal statute. The ballot initiative does not address other provisions of EFCA, including mandatory federal arbitration in certain contract disputes.