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Pandemic Blog Hitching Post for Law, Labor & Covid News:

SCOTUS Voter Suppression Decisions:  Previously noted in this blog was the April 6, 2020 SCOTUS decision requiring Wisconsin voters to jeopardize their/their families’ health in order to preserve their vote.  Since then we’ve seen SCOTUS decline to compel the State of Texas to allow universal vote-by-mail during the pandemic.  Most recently SCOTUS issued a decision refusing to reinstate a Florida district court injunction which would allow ex-felons to vote unless the State could prove they had outstanding court debt, in which case they yet could vote if they demonstrated lack of means to pay off such debt.  By way of background, in 2018 a supermajority of Florida residents approved a constitutional amendment abolishing a Jim Crow-era law permanently disenfranchising convicted felons, which action was promptly “sabotaged” by legislation compelling formerly incarcerated people to pay all fines and fees associated with their sentence. This legislation was limited by district court decision finding that it abridged the right to vote on the basis of wealth, comprising a violation of the 14th Amendment equal protection clause and also a violation of the 24th Amendment prohibiting a tax on ballots.  Notably, over an 8-day trial the district court demonstrated the unavailability of information as to such “debt”, commonly conflicted data as to the amount of such debt, as well as a backlog of over 85,000 pending voter registrations from newly eligible Floridians.

In a now well familiar pattern, SCOTUS refused to reinstate the district court injunction without any explanation of its “reasoning.”  In contrast, Justice Sotomayor wrote what has been described as an “incandescent” dissent joined in by Justices Ginsburg and Kagan.   Sotomayor’s dissent notes that “nearly a million people” will be barred from voting “because of Florida’s alleged wealth discrimination, inscrutable processes and tax.”  Moreover, wrote Sotomayor, due to the district court’s rulings, Florida’s “voter paywall” has been “on hold” for nearly a year during which time period tens of thousands of Floridians with felony convictions already registered to vote and will have “no notice of their potential ineligibility or the resulting criminal prosecution they may face for failing to follow the abrupt change in the law.”

National Labor Relations Board ELECTIONS:  While the NLRB itself has been engaged in video or “remote” bargaining with its own union, it has sporadically acted to interfere with mail ballots in union certification elections, before restoring former policy providing for regional director discretion on such matters, as it has rapidly adopted other measures, based upon admittedly flawed data, questioning its “contract bar” doctrine precluding union ouster/decertification during the pendency of a collective bargaining contract, prior to the expiration of Member Kaplan’s term upon which, once again, the NLRB will lack the requisite quorum to function.  Indeed, as other actions of the current administration have conspired to render the US a “pariah” state, i.e., withdrawal from the World Health Organization in the midst of a global pandemic, the International Trade Union Confederation has identified the U.S.A. as the only country in the “Group of Seven”[1] found to engage in systemic violation of worker rights.  As well, the currently configured NLRB has issued new policy allowing NLRB members to participate in decisionmaking even if the agency’s own ethics officials determine that the member has a conflict of interest as to such decisionmaking.

Covid-related Labor/Employment Law News: The AFL-CIO has requested SCOTUS to compel the federal Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) to protect employees from airborne transmission of Covid-19.  Labor Secretary Eugene Scalia, scion of Antonin, has defended OSHA’s inaction under the guise that OSHA “reasonably determined” that an ETS with respect to Covid-19 is “not necessary” in light of OSHA’s “general duty” clause.  In other news, Smithfield Foods of Sioux Falls, South Dakota has requested the South Dakota District Court to quash an OSHA subpoena seeking South Dakota health records.  Meanwhile, the UAW is seeking shutdown of GM’s Arlington, Texas plant due to rising Covid infections.  This as McConnell seeks to push through a Covid-19 employer liability protection bill, pursuant to which businesses would “lose their legal shield” only if they have failed to make reasonable efforts to adhere to applicable public health guidelines and committed an act of “gross negligence or intentional misconduct.”

Administration’s Ongoing Retaliatory Terminations: Continuing on the front of the Administration’s sequence of retaliatory termination actions, SCOTUS in Seila Law v. CFPB, with four (4) liberal dissenting justices, condoned the Administration’s ouster of the head of the Consumer Financial Protection Bureau without “cause,” i.e., demonstration of inefficiency, neglect or malfeasance, and AG Barr ousted U.S. Attorney Geoffrey Berman who had been heading the Manhattan Prosecutor’s Office’s investigations into several individuals connected with the President.

All in all, and with a “shout out” to Tim Snyder’s Road to Unfreedom,[2]  nothing beyond the “No bounds” of the “outrage upon outrage” of our dismembering republic.


[1] Canada, France, Germany, Italy, Japan, the United Kingdom and the U.S.A.

[2] “Trump was something else:  a  sado-populist, whose policies were designed to hurt the most vulnerable part of his own electorate.”  Ibid., 274.