Arizonans won't be able to vote in November to make it harder for unions to organize, at least not unless legislators fix it -- and quickly.
Without comment, the Arizona Supreme Court on Tuesday upheld a lower court ruling that Proposition 108 is illegally crafted. That order signed by Chief Justice Rebecca White Berch, which is not appealable, bars the Secretary of State's Office from putting it on the ballot.
But Clint Bolick, attorney for the Goldwater Institute, said there may still be a way to resurrect the issue: He wants Gov. Jan Brewer to call a special session to come up with a new version that meets constitutional requirements.
Brewer is sympathetic to the push by Proposition 108 supporters to undermine efforts by unions and their Democratic allies in Congress and the White House to make it easier to organize. She even crafted a statement in support of the measure to appear in the pamphlet being mailed to the homes of all registered voters.
Gubernatorial press aide Paul Senseman said the final decision will depend on whether House and Senate Republican leaders are able to get their members back to the Capitol just weeks ahead of the primary.
But time may simply have run out.
Matthew Benson, spokesman for Secretary of State Ken Bennett, said the "drop dead'' date for putting a measure on the ballot is this coming Tuesday.
Senate President Bob Burns pointed out that many Republicans, himself included, are attending the American Legislative Exchange Council meeting all this week in San Diego. And without Democratic support to waive the rules, a special session would take at least three days, making that Tuesday deadline virtually impossible to meet.
Burns said he and other legislative leaders cautioned backers of Proposition 108 that they had crafted it in a way that opened it up for constitutional challenge. "The proponents wanted to go ahead anyway,'' he said.
Under current federal labor law, employees who want to organize must first gather signature cards from a majority of employees who are interested. That results in a vote by secret ballot.
Those union votes sometimes fail. Union organizers say it is because of employer pressure; business groups say workers, unaffected by peer pressure, vote their own interests.
What unions want -- and what Obama promised to support -- is a "card check'' option: Once there were cards signed by a majority of workers, the union would be formed.
Business interests say that will make it harder for individual workers to say "no.''
With Republicans in the minority in Congress, business groups organized Save Our Secret Ballot measures in individual states to forbid card check rules. Organizers in Arizona convinced legislators last year to put the question to voters this November.
But they added a twist: The same constitutional amendment also would guarantee secret ballots in all public elections.
The United Food and Commercial Workers Union Local 99 sued, saying that violates a requirement that amendments to the Arizona Constitution include only a single subject.
More to the point, attorney Andrew Kahn said public elections already have secret ballots. He argued that language was included for political reasons, gaining support for the controversial union measure by tacking on the more popular -- and unnecessary -- idea of protecting secrecy in public elections.
Maricopa County Superior Court Judge Robert Oberbillig agreed, ruling last month that the measure could not go to the ballot in the form approved by lawmakers. It was his ruling that the high court upheld on Tuesday.