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h/t: Irin Carmon at

h/t: Dylan Scott at TPM

On the heels of its recent Supreme Court victory in Harris v. Quinn, the National Right to Work Committee and Legal Defense Foundation (NRTW) has initiated a bold new attack on unions.

In a recent fundraising appeal sent on August 10, the president of both organizations wrote that Harris “was just the beginning,” and that fair share provisions (or, as he called them, “forced dues”) were only “part of the problem.” Now, having succeeded in imposing a right-to-work model for home healthcare workers across the country, NRTW is gunning after a much greater and unexpected target: exclusive representation.

One of the bedrock principles of American labor law is exclusive representation, whereby a union represents all the workers in a bargaining unit after it shows majority support by the workers. In a new case filed on behalf of a few Minnesota home care workers, Bierman v. Dayton, NRTW is now arguing that a union elected by the majority of workers should not be permitted to represent anyone that does not choose to join. 

Last week, I wrote about a new positive experiment in members-only unionism at Volkswagen, which does not follow the exclusive representation model. If it is successful, Bierman v. Dayton would transform all public-sector unions into forced members-only unions, opening the door to a radical reconfiguration of public labor organizations.

In Minnesota, 26,000 home health care workers are currently voting by mail-in ballot whether to elect SEIU as their union. Those ballots are due by August 25. In its first maneuver of Bierman v. Dayton, NRTW filed for a preliminary injunction to invalidate the state law that authorized these workers to vote for a union—in other words, an exclusive representative—to bargain with the state. Expedited oral arguments were held on Tuesday, and on Wednesday afternoon the federal judge denied NRTW’s request for an injunction.

This early loss was to be expected, as NRTW is mounting a novel legal argument that runs counter to decades of labor and constitutional law. And NRTW’s litigation strategy generally includes repeated early losses as its representatives work their way through the judicial circuits to the Supreme Court.

NRTW’s argument in Bierman is not unprecedented, either. The group, whose mission is “is to eliminate coercive union power and compulsory unionism abuses through strategic litigation, public information, and education programs,” included a similar measure in its brief to the Supreme Court in Harris v. Quinn. However, after Justice Sotomayor challenged the NRTW attorney on whether the group truly intended to radically challenge a core principle of American labor law, he backed off the argument.

Now, after having secured a major win in Harris, the Bierman case represents the next step in a multi-pronged attack on public-sector unions, which appears to be directed toward the goal of stripping from all public-sector workers the right to organize and bargain collectively.

So far, most First Amendment challenges to public-sector unions have relied on the argument that membership, or any required payments of any fees, is the equivalent of forced association or compelled speech. However, in Bierman, NRTW is relying on the Petition Clause, which provides the right “to petition the government for a redress of grievances.” According to this argument, a free rider who has benefitted from union representation but refused to pay any fees—a circumstance made possible under Harris v. Quinn—would have suffered constitutional harm by having the union bargain on her behalf.

Through this attack on exclusive representation, NRTW is almost certainly trying to diminish unions’ strength. Seattle University School of Law professor Charlotte Garden points out that a members-only system might lead some states to simply revoke the right to bargain collectively. 

“Members-only bargaining might create a level of complexity that some public employers aren’t willing to deal with, leading states to eliminate public-sector bargaining altogether,” she says.

“For example, imagine a situation in which groups of employees within a single job classification voted for representation by several different unions that all demanded separate bargaining,” she continues. “That could create conflict among the employees and instability in the workplace that public employers were simply unwilling to deal with. States might then decide the best way forward was simply to eliminate collective bargaining.”

In an ironic twist, however, many labor advocates have also called for a revision of the rules on exclusive representation.

SUNY Buffalo Law School professor Matthew Dimick, who has written widely about some of the problems with the system of exclusive representation, explains to In These Times, “Since the representative of the bargaining unit is almost always chosen by some majoritarian process, there is always a danger that exclusive representation carries with it a suppression of minority interests and points of view.”

He notes that in the past, this has led to people already in positions of power using the union to further their agendas. “Historically,” he says, “the biggest problem has been ignoring or even suppressing racial minority interests.”

Others have argued that it is unfair to expect unions to represent those who choose to pay nothing.

Even so, though, if states were to adopt NRTW’s argument in Bierman, the next step for anti-union groups would likely be to argue that the Constitution prohibits bargaining with even a members-only union—a devastating move for the labor movement in both the private and public sectors. Though this argument may currently seem extreme and untenable, so did the argument that NRTW raised and dropped in Harris, only to pick up again in Bierman.

H/T: Moshe z. Marvit at In These Times

h/t: Zeke J. Miller at Time Magazine


WASHINGTON — Following on the heels of Utah officials and an Oklahoma clerk, Virginia Attorney General Mark Herring on Friday asked the Supreme Court to hear a case challenging the constitutionality of his state’s ban on same-sex couples’ marriages.

What distinguishes Herring’s filing is that his is the first request to the Supreme Court by a party that backs the position of same-sex couples that the ban is unconstitutional.

Of the reason for hearing the claim, Herring, represented by Virginia Solicitor General Stuart Raphael, argues that the Supreme Court should accept certiorari in the case because “[t]he question presented is vital to a large population of same-sex couples, to their children, and to their fellow Americans who believe that discriminating against gay people is both unfair and unconstitutional. They may fairly call this ‘the defining civil rights issue of our time.’”

Michèle McQuigg, the clerk of the circuit court in Prince William County, also has said that she will be filing a certiorari petition in the Virginia case. Like the clerk in Oklahoma, McQuigg is represented by the Alliance Defending Freedom, a conservative legal group.

Read the petition:

Source: Chris Geidner for Buzzfeed Politics


Just over a year after the Supreme Court ruled that the nation has made so much progress on voting rights that key legal protections are no longer needed, a coalition of civil rights groups released a report documenting hundreds of voter discrimination and suppression cases. The organizations also called on Congress to rewrite the gutted section of the Voting Rights Act.

“Voters will more vulnerable this November than they have been in decades,” said Barbara Arnwine, Executive Director of the Lawyers’ Committee for Civil Rights Under Law, in a conference call with reporters. “Contrary to the Supreme Court’s assertion, voter discrimination is still rampant, and states continue to implement voting laws and procedures that disproportionately affect minorities.”

The report, released this week on the 49th anniversary of the signing of the Voting Rights Act, counted 332 cases in the last two decades in which voters successfully sued for violations of their voting rights, or when the U.S. Department of Justice blocked a state or county’s attempt to change their voting laws in an unconstitutional way. They counted another ten instances in which aggrieved voters settled out of court.

Tellingly, the majority of the violations happened in a small handful of states — Texas, Georgia, Louisiana and Mississippi, with South Carolina close behind — that were covered by the very Voting Rights Act formula that the Supreme Court ruled outdated and unconstitutional. As a result of the Court’s Shelby County decision, the Justice Department may no longer deploy federal observers to the formerly covered states to deter and report race-based voter suppression. The civil rights advocates that the loss of this federal monitoring program will result in “a substantial increase in voter intimidation.”

Dolores Huerta, a longtime civil and labor rights activist who organized farmworkers with Cesar Chavez, told reporters the study indicates another trend she called “appalling.”

“As the Latino community grows in numbers and their influence grows in the political process, discrimination also seems to be growing,” she said. “It is sad to see how legislation and practices have continued unabated against people of Latino descent.”

Huerta and others involved in the National Commission on the Voting Rights said their research found that modern day voter suppression takes a variety of forms, and not all of them have received the kind of media and political attention garnered by controversial gerrymandering and voter ID laws.

Huerta pointed to states that disenfranchise former felons after they have served out their sentences, or charge them hefty fines to have their voting rights restored. Arnwine also mentioned dozens of documented violations involving the local government’s failure to provide ballots and information in other languages, which they are required to do by law.

Vice-Chair Leon Russell of the NAACP added: “When I attended hearings [on voting rights] in Florida and Mississippi, we saw continuing barriers to equal participation. We saw long lines created intentionally, either by not having enough polling places in certain areas, or not having enough machines at those places. Some counties in Florida even got rid of bathrooms at the polls, which makes it harder not just for people with disabilities, but for everyone.”

The report comes on the heels of another study debunking the main justification used for passing many of the controversial voting laws in question: fraud.

Harvard Professor Justin Levitt surveyed more than a billion votes cast in general, primary, special, and municipal elections across the US from 2000 through 2014, and found only 31 credible instances of voter impersonation. And many of those 31 were never confirmed and prosecuted.

Source; Alice Ollstein for ThinkProgress



Virginia Attorney General Mark Herring announced Tuesday he will ask the U.S. Supreme Court to hear Virginia’s same-sex marriage suit.

Herring says he plans to file the petition Friday to “definitively settle the constitutional issues for the Commonwealth and the rest of the country.” Utah filed an appeal with the U.S. Supreme Court earlier Tuesday.

A filing Tuesday in the 4th Circuit Court of Appeals requested the Court stay its mandate pending the Supreme Court’s decision whether to hear the case. 

The three-judge panel split 2-1 last week to uphold a prior district court’s decision the state’s ban is unconstitutional. 

Click here to read the full ruling:

"Throughout this case, I have fought for the fundamental rights of Virginians and the quickest possible resolution," said Attorney General Herring. "I believe the district and appeals courts ruled correctly in striking down Virginia’s discriminatory marriage ban, but it has long been clear that the Supreme Court will likely have the final word. I want that decision to come as soon as possible and I want the voices of Virginians to be heard. This case has moved forward at an incredibly swift pace, and I look forward to a final resolution that affirms the fundamental right of all Virginians to marry."

Virginia’s General Assembly approved the same-sex marriage ban in 2005 and it was ratified into law by 57 percent of voters in 2006.

Attorney General Mark Herring has sided with same-sex marriage advocates, however both sides have conceded the final decision likely will be made in the Supreme Court.

The law is being challenged by Timothy Bostic and Tony London, a Virginia Beach couple, as well as Carol Schall and Mary Townley from Chesterfield.

Bostic and London have been in a relationship since 1989 and have lived together for more than 20 years. They applied for a marriage license in Norfolk in July 2013, but were denied by the clerk of court.

Schall and Townley have been together since 1985, have a child together and were legally wed in California in 2008. 

Joanne Harris and Jessica Duff of Staunton and Christy Berghoff and Victoria Kidd of Winchester also joined the suit.

Gay marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court last year struck down a key part of the federal Defense of Marriage Act, according to the Associated Press, however those rulings remain in various stages of appeal.

Same-sex marriage is currently legal in the District of Columbia and 19 states. In all, the AP counts more than 70 cases filed in the remaining 31 states prohibiting same-sex marriage.


Utah officials on Tuesday asked the Supreme Court to hear an appeal of the case challenging the state’s ban on same-sex couples’ marriages — the state’s last chance to uphold its ban and a case with nationwide implications.

After losing at the trial court in December 2013 and in the 10th Circuit Court of Appeals in June, the request to the Supreme Court is the only option remaining for Gov. Gary Herbert and Attorney General Sean Reyes, who are defending the ban.

If the court hears the case, the justices could issue a definitive, nationwide ruling on whether the many state same-sex marriage bans being challenged across the country are constitutional or not.

The Supreme Court, however, need not take the case. The process of seeking a writ of certiorari filed on Tuesday is the way of asking the court, which mostly gets to pick and choose which cases it wants to hear, to hear their case.

In the filing, Herbert and Reyes — represented by John J. Bursch, the former Michigan Solicitor General who has become a go-to conservative Supreme Court litigator since leaving that role; Gene Schaerr, a DC lawyer who left his role as a partner at Winston & Strawn to represent the state in the case; and state attorneys — gave the court eight reasons to take its case. Notably, although Schaerr argued the case at the 10th Circuit, Bursch is listed as the counsel of record in Tuesday’s filing.

The request comes despite the fact that one of the main reasons the court takes a case — a so-called “circuit split” that happens when different courts of appeals reach conflicting decisions on a matter — does not exist among the courts to have decided marriage cases since the Supreme Court’s decision striking down part of the Defense of Marriage Act in June 2013.

Nonetheless, Utah argues that the Supreme Court should hear its appeal because: (1) the court is “familiar” with the case because of the stay proceedings that were considered by the court, (2) state officials are “united” in defending the ban, (3) lower courts ruled that the state’s laws “were not based on animus,” (4) the “fundamental rights” questions are clearly presented, (5) the case involves both marriage and marriage recognition claims, (6) there are no standing issues at play in the case, (7) there is “no need to let the issue percolate even more,” and (8) the harm in waiting to resolve the issue is significant, “regardless of which side prevails.”

The plaintiffs in the case will now respond to the “cert petition,” as will outside parties who wish to share their view with the court.

Clerks in Oklahoma and Virginia already have said that they, too, will be asking the court to hear appeals that they lost in the 10th Circuit and 4th Circuit, respectively.

The Supreme Court is not expected to take any action on the petitions before they return to begin their new term in late September. At the same time, however, they are not require to act then. In 2012, for example, the justices did not act on requests relating to DOMA or California’s Proposition 8 marriage amendment until December of that year.

Here’s how the petition ends:

Here's how the petition ends:

Read the Supreme Court filing:

Source: Chris Geidner for Buzzfeed LGBT

If Justice Ginsburg’s words are true, expect a major marriage equality case to be decided at SCOTUS no later than June 2016.

h/t: David Badash at The New Civil Rights Movement


This won’t surprise anyone who’s been following Obamacare’s latest legal battle, but the case just got one step closer to the US Supreme Court. Again.

The most recent legal challenge centers on the subsidies available to people newly insured on state insurance exchanges. The plaintiffs argue that, based on the plain text of the law, Congress only authorized subsidies for state-established exchanges and that subsidies shouldn’t be available in the 36 states with federal exchanges. The federal government vehemently disagrees.

The plaintiffs in King v. Burwellthe case that was decided by the Fourth Circuit earlier this month, have asked the Supreme Court to hear their case, CNBC reports. The Fourth Circuit ruling went in favor of the government; the unanimous opinion said that subsidies should be available to residents of all states, based on their best reading of the law.

It’s not clear whether the high court will take up the case. Four justices have to agree to hear it, and they may wish to wait until Halbig, a related case, has fully played out.

Unlike King, the government lost in Halbig. There, the three-person panel of DC Circuit judges held that subsidies are illegal in the 36 states where the federal government runs health insurance exchanges. But the government plans to ask the entire DC Circuit — eleven judges in total — to review the decision “en banc”. Because the full DC Circuit skews liberal, observers expect that the Halbig decision will be reversed during en banc review. That probably won’t happen until early fall.

The King plaintiffs decided to skip an en banc petition.

The justices may wish to wait until Halbig’s en banc review has been resolved before taking up one of the subsidy challenges. If they wait, that could push the timeline on a Supreme Court hearing back by a full year.

Alternatively, the Supreme Court could decide not to hear any of these challenges.

The Court will decide sometime this fall whether or not to hear King. If they do decide to hear the case, oral arguments would happen this winter and a final ruling would be expected sometime next spring.

The petition to the Supreme Court can be read here. For our complete coverage of these lawsuits, click here.

Source: Adrianna McIntyre for Vox

She’s right on. 

h/t: Nicole Flatow at Think Progress Justice