Is Card Check Unconstitutional?
At Findlaw, Cornell Law Professor Michael Dorf asks the question: "Is There a Constitutional Right to Sign a Petition Anonymously?" Professor Dorf notes the recent decision in Doe #1 v. Reed, wherein the Ninth Circuit held that 100,000 people who signed a petition in Washington state had no constitutional right to protect their identities from becoming known by the general public. Calling it a "difficult" question, the Professor concludes that it might be more prudent to deal with the matter as a policy issue, noting "a regime of public disclosure of petition signers could have a powerful chilling effect on political participation by people holding unpopular views."
Professor Dorf notes the widespread preference for the secret ballot in public elections, yet observes:
But, of course, widespread or even universal adoption of a practice does not necessarily render that practice constitutionally obligatory. Early votes were not cast anonymously, and if the Court were to say that the First Amendment requires the secret ballot, then that ruling could cast doubt on other electoral systems that use various forms of public voting.
Consider the proposed Employee Free Choice Act, which would permit certification of a union as the representative of workers in a bargaining unit without a secret ballot (although a secret ballot could still be used). Is the proposed Act unconstitutional? And what about corporate governance laws, and other laws that permit or require people to cast their votes or otherwise state their opinions without the protection of anonymity. Are they also unconstitutional?
Perhaps the most dramatic denial of anonymity is that effected by the Sixth Amendment, which—except in extraordinarily rare circumstances—requires crime victims to testify in open court in the face of those who wronged them. A Supreme Court ruling that any reasonable fear of intimidation or harassment triggers a right to anonymity could thus have far-reaching consequences.
An interesting column well worth a read. And should the Supreme Court take up the Doe petition, its decision would have an impact on the legal challenges that EFCA may face if it passes including a card check provision.
