Freedom Foundation

SCOTUS Asked to Invalidate Deceptive, Discriminatory Union Ballot Measure

Five years ago, Washington state voters were the victims of a massive fraud perpetrated by the state’s government unions. Now, the U.S. Supreme Court is being asked to undo the damage.

Three Washington workers and the Freedom Foundation, a national watchdog organization that spotlights the abuses of government unions, on March 19 filed a request for certiorari in Boardman v. Inslee, which challenges a deceptive ballot measure that prevented thousands of homecare aides and childcare providers from discovering they could no longer be forced to join or pay dues to a labor union.

Initiative 1501, which appeared on the ballot in November 2016, was billed as a way to crack down on identity theft targeting seniors and vulnerable individuals.

But the heart of the initiative was a provision barring the release of contact information for taxpayer-compensated caregivers to anyone but the labor unions that already represented them.

In Washington state, homecare aides for Medicaid-eligible clients are represented by SEIU Local 775, while home-based family childcare providers serving low-income families in the Working Connections program are represented by SEIU Local 925.

The whole initiative — which Washington voters ultimately approved — was described by the Seattle Times editorial board as a “Trojan horse” intended to prevent the Freedom Foundation from telling caregivers the truth.

Unsurprisingly, virtually 100 percent of I-1501’s financial support came from SEIU rather than law enforcement or seniors’ advocacy groups.

For many years, Washington law required unionized homecare aides and childcare providers to pay union dues or fees, with the state automatically deducting the funds from workers’ payments on SEIU’s behalf.

In 2014, however, the U.S. Supreme Court ruled in Harris v. Quinn that homecare aides, home-based childcare providers and other “quasi-public employees” could not constitutionally be required to financially support a union.

Because SEIU had no interest in sharing this news, the Freedom Foundation created an outreach program to contact caregivers and providers by email, direct mail and door-to-door interactions to inform them of their newly acknowledged right to end unwanted union dues deductions from their pay.

But in order to contact them, the Freedom Foundation first needed to know who these workers were. The organization requested and received lists of providers from the state, which is the only entity that maintains the information. As a result of the ensuing outreach program, thousands of providers dropped their union membership and stopped paying dues.

The financial loss prompted SEIU to push back with litigation in state court to prevent release of the lists to the Freedom Foundation and with lobbying efforts to rewrite open-government laws to prevent release of the information.

When those efforts failed, SEIU hatched the idea of I-1501.

While the campaign’s messaging focused on protecting seniors and the vulnerable, newspaper editorial boards around the state almost universally condemned the unions’ deceptive gambit to undermine the state Public Records Act.

Home caregiver Brad Boardman, the lawsuit’s lead plaintiff, had worked with the Freedom Foundation to help educate other caregivers of their rights under Harris.

“For years,” Boardman said, “caregivers like me were forced to join and pay dues to a union. After the Harris ruling, we requested the names of every caregiver in Washington to tell them about their right to leave the union. I-1501 was one of the more insidious ways the union kept from giving them to us.”

In their Supreme Court petition, the plaintiffs contend I-1501 violates the First Amendment by allowing SEIU access to the list of providers necessary to communicate with providers while denying union opponents and rivals access to the same information, which constitutes unconstitutional viewpoint discrimination.

“I-1501 was a deceptive and despicable attempt by SEIU to keep home caregivers and childcare workers in the dark about their civil liberties,” said Freedom Foundation CEO Aaron Withe. “But whether passed by the legislature or the voters, no state law can pick and choose who gets to speak and who must be silenced on the basis of their political views, which is precisely what SEIU’s ballot measure did.”

Boardman is the second Freedom Foundation case appealed to the U.S. Supreme Court this year.

The petitioners are represented by former U.S. Solicitor General Paul Clement of Kirkland & Ellis LLP, Susan Stahlfeld of Miller Nash Graham & Dunn LLP and Freedom Foundation attorney Caleb Jon Vandenbos.

Hear from our plaintiffs in the case here.