The Obama administration has fired its opening salvo against a cornerstone of democracy: the right to secret ballot.
Last fall, voters in four states voted overwhelmingly to amend their constitutions to protect the right of workers to vote by secret ballot in deciding whether or not to form unions. That right has been enshrined in federal law for 75 years but is threatened by bills pending in Congress.
Nonetheless, the Obama National Labor Relations Board has filed a lawsuit against Arizona seeking to halt its protection of the right to secret ballot. Federal law governs labor relations, the NLRB asserts, and states cannot provide greater security for worker rights.
Why is the Obama administration taking such a profoundly anti-democratic position? The answer is simple: It's pay-off time for the massive labor union support Barack Obama received in the 2008 election.
Private-sector unionization has been dwindling for a long time. To reverse that, unions pushed a "card-check" system that would replace secret-ballot union-recognition elections with a system by which unions are automatically created once 50% of employees in a workplace sign cards requesting them.
The card-check system is an open invitation to intimidation by both unions and employers. Only in the privacy of the ballot booth can workers express their true views.
The card-check legislation failed in the last Congress, but the NLRB may try to impose it through bureaucratic mandate. The threat from our nation's capitol led the Goldwater Institute to draft a model state constitutional amendment to protect the right to secret ballot, and inspired activists mobilized to enact amendments last fall in Arizona, South Carolina, South Dakota and Utah.
With support from liberals and conservatives, union members and non-members alike, the measures passed overwhelmingly in all four states, averaging over 70% of the vote and sweeping 153 out of 154 counties. In the real world, that amounts to a popular tsunami. In politics, it's called a serious mandate.
The NLRB will try to overturn the mandate through sheer force of federal law. But the agency will face a heck of a fight. The right to secret ballot is recognized under the federal constitution. States are free to give even greater protection to individual rights.
And of course the decision whether to organize a labor union affects freedom of association, which is protected by both the federal and state constitutions.
A key consideration for courts in deciding if federal law "preempts" 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 director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation.