Tag: elections

Beltway Buzz, January 20, 2023

Union Membership Decreases. The percentage of workers who are union members dropped to 10.1 percent in 2022 from 10.3 percent in 2021, according to data released this week by the U.S. Bureau of Labor Statistics (BLS). In the private sector, the unionization rate fell to 6 percent last year from 6.1 percent in 2021. According to BLS:

The 2022 unionization rate (10.1 percent) is the lowest on record. In 1983, the first year where comparable union data are available, the union membership rate was 20.1 percent and there were 17.7 million union workers.

Thus, despite some splashy headlines and a few high-profile examples, the great majority of employees continue to reject unionization. Expect labor unions and their allies in Washington, D.C., to spin these numbers as a reason to double down on efforts to tilt the labor policy field in favor of labor unions.

D.C. Circuit Issues Ruling on NLRB 2019 Election Regs. This week, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision relating to five specific provisions of the National Labor Relations Board’s (NLRB) 2019 changes to its regulations governing union elections. In a May 2020 decision, the U.S. District Court for the District of Columbia (in an opinion by then-judge Ketanji Brown Jackson) invalidated the five provisions as contrary to the Administrative Procedure Act because the NLRB did not seek public comment on the changes. (The Board argued that the changes were procedural, not substantive, in nature and that public comment was not necessary.) In this week’s decision, the D.C. Circuit agreed that the district court was correct in invalidating three provisions: “the rules regarding the eligible employee-voters list, the timeline for certification of election results, and election-observer eligibility.” However, the D.C. Circuit ruled that the two remaining provisions—regarding pre-election litigation of voter eligibility and the timing of the date of an election—are “‘internal house-keeping’ rules” that are exempt from notice and comment requirements.

House Republicans Seek Information From Federal Agencies. Representative Virginia Foxx (R-NC) is wasting no time exercising her authority as chair of the House Committee on Education and the Workforce. Late last week, Foxx resent to federal labor agencies a series of previous information requests that were answered while Republicans were in the House minority in 2021 and 2022. The requests include the following:

  • Letters to Secretary of Labor Martin Walsh regarding, among other issues, his involvement in various high-profile labor disputes; documents and communications relating to the development and implementation of the Occupational Safety and Health Administration’s (OSHA) 2021 vaccine-or-test emergency temporary standard; and information surrounding the February 2022 report offered by the Task Force on Worker Organizing and Empowerment, such as attendance lists, meeting minutes, rejected policy proposals, involvement of outside organizations.
  • A letter to National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo regarding her April 2022 memorandum relating to employer speech. Specifically, the letter asks for information about the possible involvement of outside organizations, other agencies, and the White House, in the drafting of the memo.
  • A letter to NLRB Chair Lauren McFerran inquiring about potential conflicts of interest that Member Gwynne Wilcox and Member David Prouty may have regarding the Board’s joint employer policy.

The Buzz suspects that these letters are just the first examples of what will be at least two years of aggressive agency oversight by the committee.

DHS Announces Deferred Action for Workers Involved in Labor Investigations. Late last week, the U.S. Department of Homeland Security (DHS) announced a new streamlined and expedited process for undocumented workers seeking deferred action as a result of their cooperation in investigations into potential violations of labor laws. The new policy further implements provisions of DHS’s October 2021 memorandum, “Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual.” According to the announcement, DHS will “provid[e] new guidance to labor agencies regarding processes to seek deferred action for certain workers” and will create a “single intake point for deferred action requests from noncitizen workers.” As such, “[t]he centralized intake process will allow DHS to efficiently review these time-sensitive requests, provide additional security to eligible workers on a case-by-case basis, and more robustly support the mission of labor agencies.”

OFCCP Proposes Changes to Complaint Intake Process. This week, the Office of Federal Contract Compliance Programs (OFCCP) proposed changes to its complaint intake process. OFCCP is proposing to add a preliminary step to evaluate the timeliness of allegations, whether it has jurisdiction over a matter, and how the matter should proceed. If OFCCP determines that an investigation is warranted, it will direct the complainant to fill out a more detailed form. According to the proposal, this two-step procedure “will improve the efficiency of [OFCCP’s] complaint intake process.” Comments are due by March 20, 2023.

Days of Hayes. President Rutherford Birchard Hayes passed away this week (January 17) in 1893. Hayes, the nineteenth president, was a former congressman and three-time governor of Ohio before he ran for president in 1876. His election against Democrat Samuel Tilden, the governor of New York, was mired in controversy and allegations of voter intimidation, resulting in disputed Electoral College votes. This led to the creation of an electoral commission, which eventually swung the Electoral College votes to Hayes by a margin of 185–184. The process earned Hayes the nickname “Rutherfraud” from Democrats. While Hayes hasn’t been the subject of popular movies or Broadway shows, he was a very interesting president:

  • Although twelve presidents who served before him were lawyers, Hayes was the first president to graduate from law school.
  • At almost forty years old, with no previous military experience, Hayes volunteered to fight for the Union during the Civil War. He was wounded several times, and served in the same infantry unit as fellow future president, William McKinley.
  • In 1879, Hayes signed the “Lockwood Bill,” which permitted women to practice law in federal court.
  • Hayes was the first president to make a trip to the West Coast and the first president to have both a telephone and a typewriter in the White House.

Hayes is responsible for the first Easter Egg Roll on the White House lawn, a tradition that will celebrate its 145th anniversary in just a few weeks.

Article By James J. Plunkett of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more labor and employment legal news, click here to visit the National Law Review.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

State Voting Leave Requirements: A Refresher in Preparation for the 2022 Midterm Elections

Millions of workers across the United States will be headed to the polls on Tuesday, November 8, 2022, for the midterm elections. With control of Congress up for grabs for the final two years of President Joe Biden’s first term, several close Senate races, five states considering ballot measures to legalize recreational marijuana, and 36 states holding elections for governor, this midterm election is one of the most highly-anticipated in decades. Early voting numbers in some states already suggest there could be record turnout.

Despite the proliferation of early and mail-in voting, increased interest in this election could drive more employees to request time off from work to vote. Most states require employers to provide at least unpaid leave from work when polls are not open for a reasonable amount of time outside of employees’ work hours. Here is an overview of voting leave requirements across the United States to help employers prepare for Election Day.

States Without Specific Voting Time Off Requirements

Several states do not require employers to provide any specific leave to allow employees to vote. These include Delaware, Florida, Hawaii, Idaho, Indiana, Louisiana, Maine, Michigan, Montana, New Hampshire, New Jersey, North Carolina, North Dakota, Oregon, Pennsylvania, Rhode Island, South Carolina, Vermont, and Virginia.

While not requiring leave, some of those states more generally protect employees’ rights to vote or participate in politics more generally. For instance, Florida and Mississippi prevent employers from discharging an employee for voting or based on how they voted. Similarly, in Idaho and Michigan, employers may not attempt to influence an employee’s vote by discharging or threatening to discharge an employee from employment.

Delaware and New Jersey prohibit employers from intimidating employees into how to vote or not to vote, and Pennsylvania prohibits employers from interfering with an employee’s right to vote. Louisiana requires that employers with 20 or more employees not make any rule that prohibits an employee from participating in politics. In North Dakota, employers are encouraged, but not required, to allow employees to take leave to vote in all elections when employees’ regular work schedules conflict with the time the polls are open.

Finally, Washington and Hawaii do not have specific voting leave laws, but both conduct elections by mail, eliminating the need to take leave to wait at the polls. Hawaii repealed a prior law providing for up to two hours of voting leave when it switched to vote-by-mail for all statewide elections with the 2020 primary election.

Voting Leave Laws Map

States With Unpaid Voting Leave Laws

Several states require employers to provide employees with some amount of unpaid leave to allow them to vote. Connecticut joined this list of states in June 2021, requiring employers to provide all employees with two hours of unpaid leave to vote in a covered election, though employees must provide the employer notice of the need to take the time off at least two days prior to the election. However, the law is set to sunset on June 30, 2024.

Arkansas and Ohio generally require employees to allow employees to take a reasonable amount of time off, unpaid, to vote on Election Day. In Alabama, employees are allowed to take up to one hour of leave to vote in primary and general elections if the polls are not open at least two hours before or one hour after an employee’s work shift.

In Georgia, employers must give employees “necessary” time off to vote when employees provide reasonable notice of the need for the leave, however, employers are not required to provide time off for employees who have at least two hours before or after their work shift when polls are open to vote. In Massachusetts, unpaid voting leave applies only to employees working in manufacturing, mechanical, or mercantile establishments, and employers are not required to pay for this leave. Further, employees may only request leave for the first two hours after the polls are open.

Some states provide more than two hours of leave for employees to vote, though employers are not required to pay for it. In Wisconsin, employers must allow employees to take up to three consecutive hours of unpaid leave to vote. Employers may not deny a request for this leave, but may designate the specific time of the absence. Kentucky provides the most time for voting leave, requiring employers to allow employees to take unpaid leave for a reasonable time, but not less than four hours, to vote or apply for an absentee ballot. Still, employees must request leave in advance and specify the hours to be used.

States With Paid Voting Leave Laws

Employers in a number of states are required to provide paid time off for employees to vote, at least in circumstances where polls are not open outside of an employee’s regular work hours. Alaska requires employers to allow employees who do not have two consecutive nonworking hours while the polls are open to take off as much work time as necessary to vote “without loss of pay.” Similarly, in Texas, employers must allow employees to take paid time off to vote, unless the polls are not open for two consecutive hours outside of an employee’s working hours.

In Minnesota, employees must have “the time necessary” to go to their designated polling place and return to work on Election Day. In Nevada, employees may request “sufficient” leave time to vote on Election Day, which is determined by the distance of the polling place from the employee’s workplace (1 hour for up to 2 miles; 2 hours for greater than 2 and up to 10 miles; and 3 hours for more than 10 miles). Wyoming requires employers to provide for one hour of leave other than a meal break to vote in a general, primary, or special congressional election unless polls are open for at least three consecutive hours outside of an employee’s work shift.

Many states provide for up to two paid hours of leave for voting. These include: California, Colorado, District of Columbia, Illinois, Iowa, Kansas, Maryland, Nebraska, New Mexico, New York, Oklahoma, South Dakota, and Utah. Iowa, in 2021, reduced the paid leave from three hours to two. On the other hand, D.C. joined the states providing for up to two hours of paid leave for voting in October 2020. The D.C. law further requires employers to post a “Time Off to Vote” notice in a conspicuous location in the workplace. In New York, employers must give employees two hours of paid leave if employees do not have at least four consecutive nonworking hours to vote while polls are open. New Mexico’s leave law includes elections for Native American nations, tribes, or pueblos.

A handful of states provide for up to three hours of paid leave to vote if necessary, including Arizona, Missouri, Tennessee, and West Virginia. These states require employees provide notice of the need for leave prior to Election Day.

Employers may want to prepare for employees to take the leave time afforded by these laws to vote in the November elections.

Article By Ashley Prickett Cuttino and Zachary V. Zagger of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more election law and legislative news, click here to visit the National Law Review.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

The Rocky Waters of Absentee Ballots

This Legal Update will help you navigate through those rough waters involving absentee ballots.

Absentee Voting

No election issue seems to be more of a lightning rod over the past year than absentee voting. While voting absentee has always occurred, this alternative voting option has been thrust into the spotlight due to the COVID-19 pandemic and the public scrutiny onslaught since the 2020 Presidential Election.

Wisconsin has been at the forefront of a variety of conflicts over absentee voting. Presently, a lawsuit is pending before the Wisconsin Supreme Court concerning absentee voting and the use of ballot boxes, which are drop boxes some municipalities used to collect absentee ballots throughout the pandemic. In January 2022, a Waukesha County Circuit Court Judge ruled against the use of ballot boxes; however, the Wisconsin Court of Appeals stayed that Judge’s ruling due to the close proximity of the February 15, 2022, election primary. The Wisconsin Supreme Court then took over the case from the Court of Appeals and, on February 11, 2022, issued a temporary decision allowing ballot boxes for the February 15, 2022, primary but not the April 5, 2022 election. Local officials continue to wait for the Wisconsin Supreme Court’s final decision, which hopefully will provide greater legal direction for absentee ballots.

In the meantime, following are FAQs on the fundamentals for absentee voting.

Who is an absentee elector?

An absent elector is a qualified voter, but who is unable or unwilling to appear in person, at the polling place in his or her applicable ward or election district to vote. An individual can choose to vote absentee for any reason.

What are the qualifications for voting absentee?

Most registered Wisconsin voters can vote absentee by mail. The specific qualifications are: (1) be a U.S. citizen, (2) be at least 18 years old, and (3) have resided in their voting district for at least 28 days.

What is an absentee ballot?

An absentee ballot is used by an absent voter to cast their vote. The ballot is printed and sealed in an envelope, that then needs to be mailed or hand-delivered to the municipal clerk. The municipal clerk will ensure that the absentee ballot is received by the proper polling place on election day, as long as the municipal clerk receives the ballot on time. The law provides specific requirements concerning timeframes regarding valid absentee ballots – those details are beyond the scope of this article and it is encouraged to consult with legal counsel for further direction.

Do the same absentee voting rules apply to military and overseas voting?

No. Military and overseas voters have special rules as well as additional options for voting. For instance, they can access their absentee ballot online.

How can a voter request an absentee ballot?

An absentee ballot can be requested in the following ways: by mail, by email, online, by fax, or in person. To find out more specific information to your voting district, you should go to your municipality’s website.

What about the use of drop boxes for an absentee ballot?

There is substantial debate currently regarding the use of ballot drop boxes for absentee ballots. It is strongly encouraged to communicate with legal counsel concerning this issue. However, given the pending Waukesha County Court case referenced above and in consideration of the WEC’s withdrawal of its guidance in that case, the safest approach would be to refrain from using a drop box until further direction from the Wisconsin Supreme Court.

This information is provided as a review of the fundamental requirements when it comes to balloting. Ideally, this information will be available for reference when basic questions or conflicts occur for a quick resolution. Nevertheless, more complicated questions may arise and it is strongly encouraged to reach out to your legal counsel for timely answers as these issues develop.

©2022 von Briesen & Roper, s.c
For more articles about elections, visit the NLR election & Legislative section.

Pennsylvania Lawmakers Propose New State Office to Support Immigrants

A group of Pennsylvania lawmakers recently proposed legislation to establish the Office of New Pennsylvanians, which aims to attract, retain, and embrace immigrants in Pennsylvania. As Pennsylvania continues to suffer lagging population growth, the proposal highlights the critical need to welcome immigrants and support their transition to the Commonwealth.

Population Growth Lagging in Pennsylvania

Despite being the fifth-largest state in the country, Pennsylvania has experienced slower population growth than much of the country. According to 2020 census data, Pennsylvania has achieved only 2.4% population growth since 2010, ranking 44th out of 50 states. Western states like Utah (18.4%), Idaho (17.3%), and Texas (15.9%) led all states in population growth during the same period.

Due to this lagging growth, Pennsylvania is set to lose a congressional seat in this year’s redistricting, for a decrease from 18 to 17 seats in the U.S. House of Representatives. The loss of a congressional seat could cost the Commonwealth political clout and will affect the amount of federal funding it receives, which is often based on population.

Despite Pennsylvania’s lagging population growth, its immigrants are becoming an increasingly important portion of its economy. According to the American Immigration Council, one in fourteen residents of Pennsylvania is an immigrant, while one in ten entrepreneurs is an immigrant. In fact, immigrants represent approximately 9% of the entire workforce in Pennsylvania. For this reason, lawmakers are exploring options to promote and retain immigrants and spur additional growth in Pennsylvania.

Proposed Legislation Creating the Office of New Pennsylvanians

On Feb. 9, 2022, members of the Welcoming PA Caucus of the Pennsylvania House of Representatives formally unveiled House Bill 2173, which proposes the creation of the Office of New Pennsylvanians. The bill, sponsored by Reps. Sara Innamorato (D-Allegheny) and Joe Hohenstein (D-Phila.), will be responsible for attracting, retaining, and embracing immigrants who live in Pennsylvania. Speaking of the bill, Rep. Innamorato noted, “immigrants move to our country for the promise of freedom and more opportunity. But recent census data shows Pennsylvania is lagging in population growth. So, it’s more important than ever to enact policies that welcome them to our beautiful Commonwealth.”

The proposed Office of New Pennsylvanians will operate within the Department of Community and Economic Development (“DCED”). Additionally, the proposed legislation will develop an advisory committee consisting of appointed public and private officials who will make recommendations to the governor on policies, procedures, regulations, and legislation to attract, retain, and integrate immigrants.

If created, the Office of New Pennsylvanians will respond to immigration-related issues and inquiries, coordinate with state agencies regarding immigration-related policy, and work with stakeholders (including higher education facilities, municipal officials, and business leaders) to develop strategies to attract and retain immigrants in the Commonwealth.

Rep. Hohenstein stressed that “it is incumbent upon each of us to ensure that people who emigrate from their home country to Pennsylvania will find a new welcoming, supportive home here. Codifying the support we provide to immigrants would establish that we see our responsibility to our immigrant neighbors as a priority and would benefit all Pennsylvanians.”

The bill was introduced on Dec. 16, 2021, and has been referred to the Committee on State Government. Sponsored and co-sponsored by Democrats, it must overcome a Republican majority in Harrisburg before being enacted into law.

©2022 Norris McLaughlin P.A., All Rights Reserved
For more articles about Pennsylvania, visit the NLR Pennsylvania area of law page.

NLRB Ends Suspension of Union Representation Elections

Amid the ever-increasing impact of the COVID-19 crisis across the country, the National Labor Relations Board (“NLRB” or “Board”) announced on Wednesday that the two-week freeze on representation elections currently in effect would end on April 3, 2020.  In the weeks leading up to the nationwide postponement of elections, which included both manual and mail ballot elections, the Board implemented an agency-wide telework policy and announced the closure of several Regional Offices.  According to the Board’s website, at least six Regional Offices remained closed as of March 30, 2020, with another 14 Regional and Subregional Offices closed to the public.

In the press release announcing the moratorium on elections, the Board stated that the two-week suspension was “necessary to ensure the health and safety of our employees, as well as those members of the public who are involved in the election process.”

Concerning the resumption of elections, NLRB Chairman John Ring stated on Wednesday that the Board’s “General Counsel now has advised that appropriate measures are available to permit elections to resume in a safe and effective manner, which will be determined by Regional Directors.” Neither that announcement nor any other documents made public by the NLRB to date have explained those measures, though most observers anticipate that the NLRB will move to a greater if not exclusive reliance on employees voting by mail ballots.

In a letter to Chairman Ring the day before the NRLB announced that it would resume elections, Representative Bobby Scott (D-VA) urged the Board “to permit Regional Directors to direct elections to take place as soon as practicable if, in their discretion, the elections can safely be done, especially when considering the possibility of mail ballots.”  The announcement the Board issued the following day, however, does not require that forthcoming elections be conducted by mail ballot only, or provide any specific parameters for conducting elections as the effects of the COVID-19 crisis continue to mount.

As a practical matter, mail ballot elections appear to be the most likely manner of conducting elections in the immediate future given the growing restrictions implemented by the Federal, state, and local governments to curb the spread of COVID-19 cases.  Informally, some NLRB Regional Offices have indicated that they are preparing guidance regarding procedures for the resumption of elections, and will release such guidance once finalized.  Other Regional Offices have indicated that they are not presently scheduling any elections, even as the two-week suspension of elections concludes.   At least one Regional office has begun informing parties that the ballots will be counted via Skype conferences and not in person following the voting by mail.

Given the differing routes that Regional Offices currently appear to be taking, as well as the varying impact of the COVID-19 crisis in different areas of the country, it appears that Regional Offices will evaluate local conditions and resume elections based on pertinent circumstances.

Employers and advocates should remain up to date on the legal restrictions applicable to the areas in which workforces are located, as well as any guidance issued by Regional Offices, and be prepared to navigate the Board’s representation procedures, implement communication strategies, and monitor the election process without the in-person interactions normally accompanying election proceedings.

©2020 Epstein Becker & Green, P.C. All rights reserved.

For more from the NLRB, see the National Law Review Employment Law section.

We Put the “Ow!” in Iowa

I woke up this morning to a text from a close friend wondering how long it would take me to write about the fact that as of this writing, we still do not have results from the Iowa caucuses last night due to problems with its untried voting app.  I guess I’m firmly established on the “get off my lawn” beat.

The little-known corollary to the time-honored maxim “if it ain’t broke, don’t fix it” is “if it’s broke, don’t replace it with something worse.”    The list of potential problems with using mobile technology for something as important as voting is long.  Rule One might be “don’t hire a company named ‘Shadow, Inc.’ to build your app.”  A fellow Hoya, Matt Blaze, a professor of computer science and law at Georgetown, said that “any type of app or program that relies on using a cellphone network to deliver results is vulnerable to problems both on the app and on the phones being used to run it . . . and that “[t]he consensus . . . is unequivocal . . .[i]nternet and mobile voting should not be used at this time in civil elections.”

Any remote access application will add complexity to a task due to the need for identification, authentication, authorization, and security, of both the device and the person using it, as opposed to a simpler system based on paper or a single machine for each location where any caucus participant could authenticate herself in person. Multiple technology platforms simply increase complexity and likelihood of error. And, as I learned in the mobile payment world, if you are relying on good cell service or wifi availability for your app to do its work, you’re gonna have some unhappy end-users.

Add to these inherent problems that the app was reportedly only put together over the last two months and was inadequately tested.  (Apparently, it was the back-up plan; the original plan was to use the phone to call in votes.  “Hi, do you have Pete Buttigieg in a can?”)

Just because you can doesn’t mean you should.  I have been bringing a yellow legal pad and ballpoint (or “ink pen” down here) to meetings for years.  Clients and colleagues regularly smile indulgently, as if I had just set a butter churn down on the table.  My stock response might be appropriate for the beleaguered folks in Iowa and I offer it here for free:  Paper rarely goes down, never needs to be recharged, doesn’t need an adapter and, best of all: I know how it works.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.

Read this article on the Hey Data Data blog.
For more on election regulations, see the National Law Review Election Law & Legislative News section.

Text Messages Inviting Independent Voters to Political Speeches by Former Presidential Hopeful Howard Schultz Were Not “Solicitations” For His Book Tour

The Western District of Washington recently held in Vallianos. v. Schultz, C19-0464-JCC, 2019 WL 4980649 (W.D. Wash. Oct. 8, 2019), that two text messages encouraging recipients to view a livestream of a political speech by the former chairman and CEO of Starbucks Howard Schultz did not amount to “solicitations” under the TCPA. While exploring a run for President, Schultz released a book, “From the Ground Up,” and went on a three-month long cross-country book tour. He also collected from voter records the phone numbers of individuals registered as having “No Party Affiliation” and sent them the text messages at issue. Named plaintiffs Cassandra Vallianos, Stacey Karney, and Mike Barker brought a putative TCPA class action against Schultz alleging that the text messages were sent to them without their consent after they had placed their cell phone numbers on the national Do Not Call Registry.

Specifically, plaintiffs made two claims: first, that Schultz sent the text messages using an auto-dialer and without the plaintiffs’ consent; second, that the calls were solicitations sent in violation of the TCPA’s Do Not Call restrictions. Plaintiffs’ claims were based on two separate text messages Schultz sent Plaintiffs. The first said “Howard Schultz will be speaking in Miami at 12:30! Watch live: https://hs.media.mi-a030[.]” The second said “Howard Schultz will be speaking about his vision for America in Miami at 12:30! Watch live: https://hs.media/mia030[.]” Plaintiffs argued that these text messages were “solicitations” under the TCPA because the text messages were sent with the goal of getting recipients to purchase Schultz’s book. Defendant Schultz moved to dismiss only the Do Not Call claim.

Acknowledging that messages that serve a “dual-purpose” by including both advertising and informational communications are solicitations for purposes of the TCPA, the court looked to the context of the messages to determine whether they constituted “solicitations” under the TCPA. The court reviewed the text messages, the webpage to which the text messages directed recipients, and the speech embedded in the website. The court found that the text messages did not facially discuss Schultz’s book. The court also found that the link in both text messages took Plaintiffs to the homepage of Schultz’s website, which included various video clips, including a livestream of Schultz’s speech and a link to a website where consumers could purchase his book. But the court held that the website was not transformed into a solicitation by the “mere inclusion of a link to a website on which a consumer can purchase a product.” The court found that the speech focused on Schultz’s political views and potential run for president, not his book. The court further found that the website was just a way to facilitate viewing of Schultz’s speech. Thus, the court ultimately determined that the messages did not constitute “telephone solicitations” under the TCPA.

With the seemingly never-ending national campaign season chugging along, we expect to see more such claims filter their way through the courts.

©2019 Drinker Biddle & Reath LLP. All Rights Reserved

For more on TCPA litigation, see the National Law Review Communications, Media & Internet Law page.

Brexit: Turkeys Voting for Christmas?

Brexit delayed again – now it’s off to the races in a General Election

Despite having finally achieved a Parliamentary majority in favour of a way of delivering Brexit, in the Second Reading of the Withdrawal Agreement Bill on 22nd October, Prime Minister Boris Johnson decided – in the face of Parliament’s refusal to allow him to put the Bill through very rapidly so as to meet the 31st October Brexit deadline – to pursue a General Election instead of pushing the Bill through.

After some “after you, Claude” to-ing and fro-ing, the EU agreed to the request to extend the Article 50 deadline of 31st October which the Prime Minister had been forced by Parliament to send. The EU did so under condition that there should be no re-opening of withdrawal negotiations, no disruption to EU business by the UK (including the UK appointing a member of the new European Commission), and that the UK could leave earlier if the ratification process completed earlier.

A delicate game ensued in Parliament about the basis for a decision to hold the election, with opposition parties wanting to remove the Prime Minister’s discretion over the date of the election, and to make it impossible for him to try again to push the Withdrawal Agreement Bill. On 28th October Parliament rejected the Prime Minister’s attempt to secure an election on 12th December. Parliament then decided on 29th October that the election should be held on 12th December. The difference between the first 12th December and the second 12th December would take too long to explain, and would anyway test the sanity of all but the most extreme political geek.

And so the unhappy child of Theresa May’s disastrous 2017 election fades into the twilight…

The election Bill still needs to go through the House of Lords (unlikely to be problematic) and receive Royal Assent, and the House of Commons needs to tidy up some necessary business. So on current plans Parliament will dissolve on Wednesday 6th November for MPs to campaign for the General Election on Thursday 12th December. The British electorate, used to voting at national level every five years, had a General Election in 2015, the Brexit referendum in 2016, a further General Election in 2017, and now a third General Election in 2019 (the Scots also had an independence referendum in 2014).

Was the 2017-2019 Parliament a travesty of democratic accountability, or a powerful example of representative democracy grappling with issues which had split the nation in two through a binary exercise in direct democracy? Historians will judge. It was certainly a tough one for individual MPs, who regularly found themselves objects of extremely hostile, sometimes violent, social media messaging. Parliament certainly seemed to reflect accurately the division in the electorate, which the polls show has not shifted significantly throughout the period since the 52:48 result of the 2016 Brexit referendum.

“Prediction is very difficult, especially if it’s about the future” – Nils Bohr

So what’s going to happen in the 12th December election? It will be the first December election for almost a century, and the hardest to predict for many decades. Will Boris Johnson scoop the Leave vote across the country, or will Nigel Farage’s Brexit Party damage the Conservatives by arguing that Johnson’s Brexit deal is not really Brexit? Will the clarity of the Liberal Democrats’ Remain position help them and weaken Labour, or will Labour be able to sit on the fence on Brexit and focus the campaign on Tory austerity and public services?

The next six weeks will be exhilarating, confusing and passionate. They will decide the future course of the nation. Nothing more will happen on Brexit until after the election. Whether the election provides a clear way forward will depend on whether a party achieves a clear majority or the election produces another hung Parliament. Watch this space…

© Copyright 2019 Squire Patton Boggs (US) LLP

Read more about Brexit on the Global Law page on the National Law Review.

Utah to Test Blockchain Voting Through Mobile Apps

As we head toward 2020, expect significant public debate relating to smartphone applications designed to increase turnout and participation in upcoming elections. The Democratic Party has dipped its toe in the water by announcing in July plans to allow telephone voting in lieu of appearing for neighborhood caucus meetings in the key early primary states of Iowa and Nevada.

Given concerns regarding security and reliability of submitting votes over the internet, jurisdictions around the country have begun to test solutions involving blockchain technology to allow absentee voters to submit voting ballots. Following initial pilot programs in Denver and West Virginia, Utah County, Utah will be the next jurisdiction to utilize a blockchain-based mobile in connection with its upcoming municipal primary and general elections.

The pilot program, which will utilize the mobile voting application “Voatz”, will allow active-duty military, their eligible dependents and overseas voters to cast absentee ballots. Eligible voters will need to apply for an absentee ballot with the county clerk and then download the mobile application. The ballot itself will be unlocked using the smartphone’s biometric data (i.e., a fingerprint or facial recognition) and then will be distributed into the blockchain framework for tabulation.

Copyright © 2019 Robinson & Cole LLP. All rights reserved.
This article was written by Benjamin C. Jensen of Robinson & Cole LLP.

Brexit – Here We Go Again

The new Prime Minister of the UK, Boris Johnson, has taken up office following his decisive (66% : 34%) victory in the contest among Conservative Party members who were presented with a choice between him and the Foreign Secretary, Jeremy Hunt. He promised during the campaign to take the UK out of the EU by 31 October (when the extension to the Article 50 Brexit process expires) “do or die”. In his first speech as PM, he again underlined his determination that the UK should leave the EU by 31 October. He said that his intention was that this should be with a new deal – “no deal” was a remote possibility which would only happen if the EU refused to negotiate. But it was right to intensify preparations for “no deal”, which could be lubricated by retaining the £39 billion financial settlement previously agreed with the EU.

So the starting gun for the next phase of Brexit has fired.

What Does the Campaign Tell Us About the Approach to Brexit?

The Conservative leadership election campaign happened in two parts. The first, among MPs, whittled the long list of candidates down to two. Perhaps conscious of the broad spread of opinion among Conservative MPs, both final candidates took a nuanced line during that phase, stressing their desire to leave the EU with a (revised) deal. In the second phase, which involved selection between the two by the broader membership of the Conservative Party (roughly 160,000 people), the tone hardened notably. Polling suggests that a majority of the Conservative Party membership puts delivering Brexit ahead of the economy, the survival of the union of the UK and even the survival of the Conservative Party itself (polling after Theresa May’s European Parliament elections suggests that two thirds of party members voted for another party in those elections, with nearly 60% voting for Nigel Farage’s Brexit Party). Only averting the prospect of a Jeremy Corbyn-led Labour Government is apparently a higher priority for Conservative Party members. Responding to this sentiment, the position of both candidates became harder through the second phase of the campaign. While both favoured leaving with a deal, both were clear that the threat of a “no deal” exit must be real in order to stimulate further negotiations with the EU. Both, therefore, also favoured ramping up “no deal” preparations. In the end, the main difference between the two candidates was that Jeremy Hunt could countenance a “short” further delay to Brexit if that was necessary to secure a deal from the EU, whereas Boris Johnson promised that the UK would leave the EU on 31 October “come what may, do or die”. Significantly, in one of the last public hustings during the campaign, Boris Johnson also ruled out making changes to the Irish border backstop in the Withdrawal Agreement. His approach to how to deliver Brexit could be summarised as: deliver on citizens’ rights straight away, have a “standstill” on trade (not clear how this differs from the transitional period in the Withdrawal Agreement – it would certainly involve zero tariffs on both sides, but unclear whether it would involve regulatory alignment (see trade negotiations section below), still less continued jurisdiction of the European Court of Justice), resolve the Irish border through a comprehensive trade agreement and create “constructive ambiguity” about whether/when the UK would accept the €39 billion exit settlement in the Withdrawal Agreement – presumably making it contingent on the trade agreement. Boris Johnson called for optimism and determination to secure this outcome.

What Do the Key Ministerial Appointments Tell Us About Brexit?

In appointing his Cabinet, Boris Johnson has made far-reaching changes which shift the profile of government decisively towards pro-Brexit. All ministers were required to subscribe to keeping the possibility of “no deal” Brexit open. The principal portfolios concerning Brexit are all held by people who are either comfortable with, or even favour, a “no deal” Brexit. This looks like – and is no doubt intended to be seen in Brussels as – a government fully committed to a “no deal” Brexit, if necessary. Perhaps the most interesting appointment was, however, not of a minister at all, but of Dominic Cummings, campaign director for Vote Leave in the 2016 referendum, as a senior adviser. Taken together, this looks like a team both strongly committed to delivering Brexit and ready for a public campaign (election or referendum), if necessary.

What Happens Next?

The new Prime Minister effectively has more than five weeks’ respite from Parliamentary scrutiny, as Parliament starts its summer recess and returns on 3 September. This gives him time to consolidate his team, articulate his strategy (including boosting preparations for a “no deal” Brexit), and explore the possibilities for further negotiation with the EU. But even within his own party, on both pro-Leave and pro-Remain sides, he is, in effect, on probation.

The Parliamentary arithmetic has not changed significantly from that faced by Theresa May, but by carrying out such a substantial eviction of Mrs May’s ministers, Boris Johnson is likely to have increased the number of opponents to his Brexit policies on the Conservative back benches. They now also have an important figurehead in former Chancellor Philip Hammond. The Prime Minister has no majority without the support of the 10 Northern Ireland Democratic Unionist Party (DUP) MPs. And, within the Conservative Party, the hard Brexit supporting European Research Group (ERG) is now balanced by an anti “no deal” faction bolstered by ministers who resigned because they could not support his approach to Brexit or were sacked by him. Technically, the government’s majority, including the 10 DUP MPs, is down to two (three including one MP under criminal investigation). A by-election on 1 August is likely to reduce that by one. If the PM tries to push through a deal based on the existing Withdrawal Agreement (with changes to the accompanying Political Declaration about the future relationship, to which the EU has said it is open), he risks losing the DUP and some ERG from his majority. If his policy becomes “no deal”, he risks losing the more pro-European faction. In either case, he lacks a majority to deliver the result. The two big questions are whether Parliament (which has a substantial anti “no deal” majority) can find a way to erect a legal barrier to a “no deal” Brexit and, if not, how many Conservative MPs would really vote against their own party in a confidence vote to force either a change of direction or a fresh election – several have already indicated that they would do so if necessary. All of which points to the same Parliamentary deadlock Theresa May faced returning in September. So, unless the PM can come up with a renegotiated deal which the DUP and ERG would accept, the only way out of the deadlock would be to go back to the people. Mr Johnson’s strong opposition to a further referendum would make that a politically difficult choice. Current polling suggests that an election before Brexit is delivered would be a high risk strategy for the Conservatives.

As one influential commentator put it, the strategy may be to try for a new deal and see if the EU blinks. If they do not, go for “no deal” and see if Parliament blinks. If it does not, hold an election or referendum – an election is probably higher risk, but can be done more quickly and does not involve going back on strongly expressed views of the Brexiteers, including Mr Johnson.

What About the Europeans?

The debate about Brexit over the Conservative Party leadership campaign has been an entirely Brit-on-Brit affair, with reference to the EU position, but no engagement with it. European leaders’ reactions to Boris Johnson becoming Prime Minister have been polite, but also uncompromising, showing no willingness to re-open the Withdrawal Agreement. Michel Barnier looked forward to working with the Johnson Government to facilitate the ratification of the Withdrawal Agreement – signalling that negotiation is possible about the accompanying Political Declaration on the future relationship, and possibly other complementary accords, but not the Withdrawal Agreement itself. If the EU sticks to this position – and the EU team follows the UK Parliamentary arithmetic closely, so they know how much resistance there will be to “no deal” – the prospects for finding an agreed way forward look slim.

So “No Deal”, Then?

In April, we assessed the possibility of a “no deal” Brexit as very low. It has clearly now increased and, with a Cabinet committed to “no deal” if there is not a new deal, there are a number of ways in which it could come about. But Parliament’s majority against “no deal” remains, and there remain a number of obstacles to “no deal” in Parliament and in the economic analysis of the impact of “no deal” Brexit if the UK and EU are not able to agree on tariff-free trade using GATT XXIV. While some form of political process – such as an election – looks more likely than moving straight to “no deal” if the EU talks fail to yield a result, companies should certainly now put in place “no deal” contingency arrangements.

Free Trade Agreements

There are three interlinked free trade agreements (FTAs) in play: EU-US, EU-UK and UK-US. During the leadership campaign Boris Johnson spoke about making very rapid progress on the UK-US FTA (at one stage suggesting having a limited agreement in place by 31 October), but also about finding the long-term solution to the Irish border issue in the UK-EU FTA. In practice, it is likely that the UK-EU FTA has to come before the UK-US FTA, not least because the more the UK aligns to US regulatory standards through a UK-US FTA, the harder the solution to the Irish border issue will be – nowhere more so than in agriculture. The UK-EU FTA also has a unique character, in that the two parties start from a position of zero tariffs and complete regulatory alignment and the negotiation will, therefore, be about how far and in what respects to diverge. Both the EU-US and UK-US FTAs will have to address some highly charged political issues (agriculture, public procurement (in particular healthcare) and climate change); it could be argued that the UK would secure a better result on these issues by allowing the EU to find a politically workable way forward with the US first.

In an illustration of the complex interaction in the trade policy approach, the UK government has not been able to roll-over the EU-Canada FTA (CETA) into a bilateral UK-Canada FTA. This is because the Canadian government has analysed the impact for Canadian businesses of the UK moving to the interim “no deal” tariff policy published by the UK earlier this year – 87% of imported goods would be tariff-free to prevent harm to consumers – and concluded that the impact would be small. UK exporters to Canada would, however, face full Canadian WTO tariffs, rendering trade in some sectors unviable.

However the order of negotiations takes place, the three FTAs are effectively interlinked, and it will be important to ensure, for example, that something desirable in the UK-US FTA is not rendered more difficult to achieve by something agreed within the UK-EU FTA.

 

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