Several years ago, employers were concerned over proposed federal legislation intended to reduce their ability to oppose union organizing efforts. This Employee Free Choice Act would have replaced some secret ballot union elections with voting by card "checks," in a manner that would reveal individual employees' support or opposition to the union. Employers believed that this would lead to misrepresentation, coercion, or difficulty for employees who decided to change their minds after initially signing a card.

Due to employer concerns and the past election's results, EFCA appears to be dead for now. However, several state legislatures reacted to the proposed federal law by initiating measures of their own intended to preserve employees' rights to secret ballot union elections. Voters in four states, including South Carolina approved constitutional amendments intended to counter future EFCA proposals.

Last week, the National Labor Relations Board announced its intent to sue South Dakota and Arizona over their secret ballot initiatives. Earlier this week, the NLRB filed the Arizona suit in federal court. The NLRB contends that the NLRA preempts state efforts to establish rules and conditions for union elections. South Carolina was omitted from the initial round of suits due to limited federal resources, but the decision on the other states will directly impact the validity of the South Carolina law.