A key consideration for courts in deciding if federal law “pre-empts” state laws is whether the conduct is so “deeply rooted in local feeling and responsibility” that state autonomy should be respected. It is hard to imagine anything more deeply rooted in local feeling and responsibility than the right to secret ballot. Further, the state protections do not significantly interfere with federal law, which has vigilantly safeguarded the right to secret ballot until the current administration came to town.
Indeed, the Supreme Court last spring upheld Arizona’s employer sanction law, even though Congress has express constitutional authority to regulate immigration, emphasizing it would not lightly set aside state sovereignty. In another recent case involving a clash between federal and state law, the Court declared that federalism “secures the ability of states to respond, through the enactment of positive law, to the initiative of those who seek a voice without having to rely solely upon the political processes that control a remote central power.” That is exactly what Save Our Secret Ballot represents.
It’s clear from last November’s results that mainstream Americans care deeply about the right to secret ballot. Similar propositions will appear on the 2012 ballot in as many as six other states.
What clear-thinking politician wants to stand against the right to secret ballot? But so long as the NLRB persists in its efforts to overturn popularly enacted protections of the right to secret ballot, that is exactly where Obama stands. It is not too late to correct that profound error.
Clint Bolick is litigation director at the Goldwater Institute in Phoenix and is defending Save Our Secret Ballot in court.