Florida, Georgia, Missouri, South Carolina, and Utah have all introduced proposed amendments to their respective state constitutions to preserve the right of workers to designate their representatives through secret-ballot elections. The Utah proposal has passed both houses of the state legislature and will become a constitutional amendment if approved by a majority of voters in the 2010 general election. The measures in the other four states have yet to pass through the state legislatures.

This initiative has been championed by Save Our Secret Ballots, a business-backed organization that proposes the following 48-word amendment be added to state constitutions: “To preserve and protect the fundamental right of individuals to vote by secret ballot, where local, state, or federal law requires elections for public office or ballot measures, or requires designations or authorizations for employee representation, the right of individuals to vote by secret ballot shall be guaranteed.” This initiative seeks to safeguard the right to secret-ballot elections from the Employee Free Choice Act (“the EFCA”), federal legislation that, if passed, would effectively eliminate the secret ballot election.

However, many scholars argue that state laws, even state constitutional amendments, would be preempted by the EFCA because the U.S. Constitution makes federal law the “supreme Law of the Land.” Others contend that the state measures could survive a preemption challenge because they reflect deeply rooted state interests.