Readers of this blog may recall that one outcome of the 2010 election cycle was the adoption in four states of so-called "secret ballot" initiatives. These proposals asked voters to amend the state constitution to guarantee the right to a secret ballot in a union election. The amendments were all proposed in response to EFCA, which was then pending in Congress. The proposals passed, with substantial margins, in each of the four states.
In May 2011, the NLRB sued Arizona, and threatened to sue three other states over these changes to the state constitution. The NLRB argued that the NLRA, as a federal law, preempted Arizona’s law. Based on the Supremacy Clause in the U.S. Constitution, therefore, the Arizona law was unconstitutional on its face.
After 15 months of litigation, Judge Frederick J. Martone last week dismissed (pdf) the NLRB’s lawsuit. Judge Martone rejected the argument that the Arizona law was facially unconstitutional. Indeed, he reasoned that it is possible, given how the NLRB administers the NLRA, that the state law could be applied in a way that did not clash with federal law, or the NLRB’s prerogatives under it.
The court’s opinion, however, didn’t stop there. Rather, Judge Martone went on to note that the challenge the NLRB mounted to the law was that it was unconstitutional on its face. Because there was a "basic uncertainty" as to how the law will be enforced, "it would be inappropriate" for the federal court to assume that Arizona courts will enforce the law in a way that conflicts with the NLRA. Accordingly, the law could be unconstitutional as applied in future cases, an issue on which the court declined to rule.