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Voter rights, campaign finance take center stage as general election approaches

October 25th, 2012  |  Ron Miller

Broad-based participation in the political process is crucial to governmental legitimacy and the proper functioning of our constitutional system. The most elementary form of political participation is voting; thus, the right to vote is “a fundamental matter in a free and democratic society.” With a spirited presidential campaign sparking voter interest, the question of how the right to vote squares with the right of an employer to expect attendance on the job is likely to be raised in many workplaces.

While federal law protects a citizen’s right to vote, it is individual state law that arbitrates between that right and the rights of employers to discipline workers or withhold pay for time not worked. In more than half of states, voting takes legal precedence over work, and employers must allow employees time off to cast their ballots.

Time off to vote. Laws governing time off to vote can be found in 31 states. Many of these provisions try to strike a balance between the interests of the employee and the employer. Other states afford no special protection or incentive to an employee who takes time out of the workday to vote.

Typically, time-off-to-vote laws require that employees who are registered voters be given time off from work—usually up to two or three hours—in which to visit the polls. In many cases, time off is only guaranteed if the employee does not have sufficient time outside of working hours to cast a ballot. However, the fact that early voting or vote-by-mail is available normally does not relieve the employer of the duty to provide time off on voting day itself. Employers in many states risk fines or even jail sentences for interfering with an employee’s right to exercise the franchise. Employers who violate time-off-to-vote laws face penalties that range from trivial to a corporate death sentence.

Campaign finance. The U.S. Supreme Court’s landmark ruling in Citizens United v Federal Election Comm’n, has significantly impacted the financing of political campaigns. Despite these changes, unions in Puerto Rico faced some significant challenges with the commonwealth’s new campaign finance laws. In a recent decision, Sindicato Puertorriqueno de Trabajadores, SEIU Local 1996 v Fortuno, the First Circuit granted labor unions a preliminary injunction barring Puerto Rico from enforcing its amended campaign finance law as an unconstitutional burden on the unions’ First Amendment right to engage in political speech.

Prior to 2011, the rights of labor unions in Puerto Rico to make political expenditures or engage in electioneering were strictly limited. Seeking to bring Puerto Rico’s campaign finance law into compliance with Citizens United, the commonwealth enacted the Puerto Rico Political Campaign Financing Oversight Act, Law 222. The unions challenged the constitutionality of the Act’s procedures that juridical persons, such as corporations and unions, must follow if they wish to make either campaign contributions or independent expenditures. Failure to comply with these procedures could result in significant financial penalties, including criminal penalties for officers.

The unions alleged that the provisions of Law 222 restricted core political speech, in violation of the First Amendment, and moved for preliminary injunction. The district court denied the unions’ request for a preliminary injunction, but the First Circuit granted their motion for an appellate injunction enjoining enforcement of the offending provisions pending disposition of the appeal.

Strict scrutiny. Law 222 imposed substantial burdens on the very process through which a juridical person determines whether and how to exercise its free speech rights. It reached deep into the mechanics of an organization’s own self-governance and imposes numerous requirements on the organization’s internal processes. On its face, Law 222 forbids juridical persons from spending any money on political campaigns, through direct contributions, independent expenditures, or otherwise, without the process the statute prescribes. By forbidding juridical persons from exercising their speech rights without first complying with onerous governance procedures, the provisions “necessarily reduce the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.” Because Law 222’s challenged provisions were designed to regulate the “if” and “how” of a juridical person’s political speech, strict scrutiny applied.

Although the expressed purpose of Law 222 was to foster democratic decisionmaking processes with juridical persons and to ensure that any political speech that they make is given with their members’ full and informed consent, the First Circuit refused to accept this rationale as a justification for the statute. Even if Law 222’s provisions were justified by a compelling interest in fostering internal democratic processes, the statute was far from narrowly tailored to meet that end. The law piles burden upon burden in its effort to restrict the political speech of juridical persons without any indication that these measures are remotely necessary to meet the articulated government interest. In sum, Law 222’s challenged provisions are not likely to withstand strict scrutiny.

As history and the current election atmosphere teaches, the right to vote is something worth fighting for, so whatever you political persuasion, do yourself a favor an exercise our right to vote.