Frequently Asked Questions
Q. Isn't the right to a secret ballot in the US Constitution already?
A. Surprisingly, no. The use of a secret ballot in America was first deemed necessary to protect the voting rights of recently freed slaves after the Civil War. Voter intimidation during southern reconstruction was rampant, with African American first-time voters being threatened with physical violence, even lynching, based on how their publicly known ballots were cast. In 1892, Grover Cleveland became the first United State president elected by secret ballot.
Q. Is the right to a secret ballot being threatened? By whom?
A. Yes. Big Labor wants Congress to end the requirement that secret ballots be used by employees deciding whether to ask for union representation. In fact, a bill doing away with secret ballots already passed the House of Representations 241-185, and received a 51-49 vote in the Senate. It did not pass only because of the Senate's rule of requiring 60 votes to end debate.
Q. What are the prospects that the new Congress ends the secret ballot?
A. Democratic leaders who control Congress have publicly stated that ending the secret ballot is one of their first and highest legislative priorities for 2009. Currently the legislation is just one vote short of passage in the Senate and that may change. President Obama has said he will sign the bill. In fact, as Senator, Mr. Obama was a co-sponsor of the legislation.
Q. How is S.O.S. Ballot trying to protect the secret ballot in America?
A. By creating state constitutional rights to a secret ballot in ALL federal or state mandated elections or decisions of representation.
Q. How can a state constitutional amendment securing the secret ballot be adopted?
A. This can be accomplished in one of three ways depending on the state:
- By citizen initiative petitions placing the state constitutional amendment before the voters
- By state legislatures placing the state constitutional amendment before the voters
- By state legislatures passing the amendment and signed by the governor
Our preference is for voters to have the right to vote -- by secret ballot -- on whether their state constitution should guarantee secret ballots in all federal and state required elections or decisions of representation.
Q. What does the proposed state constitutional amendment say? What does it mean? Who wrote it?
A. It says:
"To preserve and protect the fundamental right of individuals to vote by secret ballot, where local, state or federal law requires elections for public office or ballot measures, or requires designations or authorizations for employee representation, the right of individuals to vote by secret ballot shall be guaranteed."
It simply means that every time the law says we need to choose who represents us, it will be done by secret ballot. Constitutional scholar and attorney Clint Bolick of the Goldwater Institute wrote the language.
Q. What kind of elections will this cover? How difficult is it to hold secret ballot elections?
A. Under the S.O.S. Ballot proposal, only elections or the choosing of representation mandated by federal or state law will require secret ballots. While it will vary by state, some of the elections by secret ballot may include homeowner associations and corporate elections for publicly traded companies. These elections could be as simple as a paper ballot folded in half the same way we all elected our 8th grade class president.
Q. Can a state constitutional amendment supersede a federal statute? Will this be challenged in court?
A. Yes, a state constitution can add to rights guaranteed by the federal constitution; it just can't subtract from guaranteed rights. Federal law does not automatically trump a state constitutional guarantee if the law does not specifically pre-empt states. The relevant constitutional standard in pre-emption cases is whether Congress intended to fully occupy the area of law to the exclusion of the states. Although the National Labor Relations Act generally pre-empts state laws, the US Supreme Court has ruled that state law may prevail if it safeguards important interests and does not disrupt the federal regulatory scheme. The US Supreme Court has recognized the right to vote by secret ballot and freedom of association as important interests.
Big Labor is so adamant about getting rid of secret ballot elections, a court challenge is very likely. The Goldwater Institute will defend the law if passed, all the way to the US Supreme Court.