An anti-union measure could be in danger of being thrown off the November ballot.
Maricopa County Superior Court Judge Robert Oberbillig said during a court hearing Tuesday he has serious questions about the legality of a measure that, if approved, would constitutionally guarantee the right to a secret ballot in both public and union elections. While reserving judgment, Oberbillig told attorneys for both proponents of the measure and the state legislature that these appear to be two separate and distinct issues.
That finding would be significant: The Arizona Constitution specifically prohibits amendments from being proposed that deal with more than one subject.
Attorney Clint Bolick, who represents the Arizona Chamber of Commerce and the anti-union group pushing the measure, acknowledged there are two separate issues involved. But he told Oberbillig they can be combined because they have a "common purpose or principle."
The judge is expected to rule within days. But whichever side loses is virtually certain to take the issue to the Arizona Supreme Court.
Backers of the measure have made no secret that Proposition 108 is aimed at preempting an effort by unions to have federal law changed making it easier for them to organize.
Current labor law requires a union that wants to organize workers to first get a majority of employees to sign cards seeking an election. Under the National Labor Relations Act, that leads to an election.
Some labor groups have argued that procedure gives employers too much time to try to intimidate workers.
What they want instead is a law that a union be formed automatically once a majority of workers sign those cards in support. President Obama has said he backs the change, known as "card check."
With Congress in Democratic hands, business interests are concentrating their efforts on individual states, most considered business-friendly, trying to get " secret ballot" requirements inserted into individual state constitutions.
Arizona lawmakers complied last year, voting to put the question on this November's ballot at the behest of a group called "Save Our Secret Ballot," headed by Sydney Hay. She represents a trade association of companies that do business with the copper mining industry.
Hay, who also is running for Congress this year, said businesses fear unions will use intimidation to force workers to sign the cards. By contrast, she said, while the current system also includes cards - and people know who did and did not sign - it ultimately allows workers to vote, in secret, against forming the union.
But the measure lawmakers referred to voters went further, also guaranteeing a secret ballot in public elections.
"I couldn't imagine two things being more different," the judge said. And Oberbillig noted that the right to a secret ballot in state elections already is included elsewhere in the state constitution.
The judge said the legislature could have referred the requirement for a secret vote on labor unions to the ballot all by itself, with a separate measure if lawmakers felt the need for tighter language on secret ballots for public elections.
"Why not allow the electorate to vote on one or both?" he asked Bolick. "I don't see the substantive relationship there."
He suggested that backers of the anti-union measure and their legislative allies might have had an ulterior motive for this particular wording.
"When you put them all together, you're doing it for a reason," the judge said.
That is the contention of Andrew Kahn who represents the union. He argued the issues were combined to "generate more support for its anti-union provision that a more honest focused measure could not."
Bolick, however, said the common purpose is to guarantee a secret ballot in any election overseen by the government. He pointed out that union elections are regulated by federal labor law.
It is possible that Oberbillig could sidestep the whole legal argument.
Attorney Peter Gentala who represents state lawmakers pointed out the union did not file suit until 10 months after legislators voted to put the measure on the ballot. He said if they had a problem with the wording they had a legal obligation to come forward earlier.
Kahn told the judge there was a series of reasons for the delay, including that the union was spending its money on other priorities.