While election challenges have taken prominence in national politics over the last 20 years since the aftermath of Bush v. Gore, 121 S. Ct. 525 (2000), election protests are actually nothing new to labor lawyers and union activists. Since the advent of the National Labor Relations Act, election protests have always been part and parcel of labor relations. The National Labor Relations Board has a systematic administrative process for resolving union representation elections that has been uniformly applied when representation elections are challenged. Often challenges result in litigation before the NLRB.

Union election challenges can take one of two forms. For instance, a party may claim that a particular employee should not have been permitted to vote because she or he was supervisory, managerial or not a proper bargaining unit member. Such challenges become important when the challenged vote will determine the outcome of the election. For instance, during the representational election of the Kaufman Music School’s piano accompanists, the outcome determining ballot was challenged and this challenge resulted in extensive litigation. The challenged ballot was impounded and held until the litigation was concluded and the NLRB determined that the ballot should be counted. After it won the legal battle, Local 802 succeeded in achieving representation of the accompanists as a result of that one ballot.

Another form of election challenge can result from flaws in the representation election process itself. Once a representation petition is filed with the NLRB, certain automatic time frames are triggered for the exchange of information and posting of election notifications. One critical piece of information is the list of eligible voters. This list is required to be submitted to the union by the employer within seven days of the NRLB’s direction of an election. In a matter in which I was involved, the employer failed to submit the list within the required time frame due to an error committed by the NLRB’s Regional Office that was administering the election. As a result of this failure, after the union protested that it had lost the election because it did not have the list for the complete amount of time it was legally entitled to have it, the NLRB ordered that a new election be conducted. Special Citizens Futures Unlimited, Inc., 331 NLRB No. 19 (2000).

The process for disputing national elections is much more complicated than labor representation elections since each state has its own electoral system and thus its own particular legal challenge mechanism. Some states such as Michigan do not even have a codified process for contesting an election result. In Michigan, the losing candidate must request that the state attorney general examine the election results and ascertain whether a challenge is warranted. Needless to say, navigating the byzantine state laws guiding election protests is a herculean task. Generally speaking, however, like labor union representation elections, federal election challenges may take one of two forms.

One form of challenge involves recounting ballots. In most states if there is a nominal percentage difference between candidates’ votes an automatic recount is required. Such was the case in Georgia, which recently certified Joe Biden as the winning candidate after a manual recount. There are several states involved in recounts. To date, Georgia the only state where a full recount was required by law for the current election.

It is instructive to note that Bush v. Gore involved a challenge to Florida’s automatic recount process. The Supreme Court ultimately called a halt to the recount since it was clear that it could not be conducted in compliance with the Constitution’s equal protection clause without the adoption of statewide standards for ascertaining what votes were legal and what votes were not. There simply was not enough time to put such standards in place. In essence, Supreme Court determined that as of December 12, 2000 there had to be finality to the election’s result. While that election’s results were disappointing to me, the wisdom of the Supreme Court’s holding was not. This is even more true now than it was then. It is imperative that we achieve finality in the result of any presidential election. Hopefully by the time this article is published, finality will have been achieved in the current one.

The other form of protest involves the means by which the election was conducted. For instance, several of the current presidential election challenges claim that there were defects in the machines that were used to count ballots. Other claims assert that ballots have been counted in a disparate fashion and that voters have been denied equal protection under the law. As of the date this article was written, no court has ruled favorably on any of these challenges. In fact, most challenges have been met with either skepticism or condemnation by the courts. For instance a federal court judge in Pennsylvania wrote the following in his dismissal with prejudice of President Trump’s suit seeking to overturn Pennsylvania’s election results: “One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens. That has not happened. Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more.” This dismissal was upheld by the United States Court of Appeals for the Third Circuit.

I actually spent some time digesting United States District Judge Brann’s decision in Trump v. Boockvar. 2:20-CV-02078 (M.Dist., PA. 2020). The first thing that struck me was how well-crafted and reasoned the decision was. What is more remarkable is that it was issued mere days after oral argument.

But mostly I was also fascinated by the claims that the two individual defendants raised — but not Trump’s claims. Apparently certain Pennsylvania counties adopted a process by which defective mail in ballots could be cured. Other counties did not. Hence the two individual defendants claim that they were denied equal protection of law since they unfortunately submitted defective ballots but were not permitting to cure them since they did not live in counties that permitted ballot curing. At first blush this arguably appeared to be claim. However, legal analysis demonstrated that even though the two individual defendants had legal standing to sue (Trump did not), they had not actually been denied the right to vote. They in fact had exercised that right — though defectively. While others were given more liberal treatment, expanding the right to vote for some residents of a state did not burden the rights of others — in other words the state was not imposing a restriction on their right to vote — it was making others less strict.

Moreover, the relief that Trump sought was completely unjustified. He sought the invalidation of the entire Pennsylvania election. A proper remedy, assuming that a proper claim had been asserted, would have simply been to permit the two plaintiffs’ votes to be counted — not asking for the invalidation of millions of properly cast votes. Honestly, one would think that any federal practitioner would have seen the flaw in the remedy being sought — maybe class treatment would have been available, but they did not file a class action. However, the claim on its face was baseless and its unlikely a successful class action could have overturned the election result even it there was a claim.

One thing is certain, if any branch of government is capable of saving our democracy it is the judiciary. Judge Brann was a Republican Party official in Pennsylvania and was also active in the Federalist Society and National Rifle Association so political partisanship played no role in the decision.

However, one aspect of the legal arguments being raised by President Trump could be problematic if the challenge ever reaches the Supreme Court. This strand of argument pertains to the “independent state legislature doctrine.” This doctrine asserts that only a state legislature may modify election processes and rules. If a court revises the election process, then it has acted without authority and votes counted as a result of a court sanctioned procedure should be discarded. This argument is an outgrowth of the conservative movement against judicial activism and is related to original intent jurisprudence. This argument seems to be in play in Pennsylvania. Whether this school of thought will gain any traction in a manner that would change the results of our present national election remains to be seen. Given the current margins between votes for the candidates it seems highly unlikely that this argument, even if successful, could affect the election’s results. We will see how this plays out.

Harvey Mars is counsel to Local 802. Legal questions from members are welcome. E-mail them to hsmlaborlaw@harveymarsattorney.com. Harvey Mars’s previous articles in this series are archived here. Nothing here or in previous articles should be construed as formal legal advice given in the context of an attorney-client relationship.

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