Tuesday night wasn’t just an upset victory for Donald Trump. It was also a banner night for the right-to-work movement.
At least two states — possibly three — will become right-to-work next year. Kentucky Republicans campaigned on right-to-work. They won, picking up 17 seats to gain control of the state house of representatives. Gov. Matt Bevin and the state senate already support right-to-work. So Kentucky will probably become the 27th right-to-work state next year.
However, Missouri might beat them to it. Democratic governor Jay Nixon’s veto has blocked right-to-work in the Show Me state. On Tuesday Missourians elected Republican Eric Greitens to replace him. Large majorities of the legislature support worker freedom, and Gov.-elect Greitens has vowed to sign it into law. Missouri will probably become the 28th right-to-work state.
New Hampshire may take the total to 29. Republican Chris Sununu won the New Hampshire governor’s race, and he will also have a Republican legislature. In recent years, the GOP legislature has passed right-to-work, only to have it blocked by a Democratic governor. That dynamic no longer prevails. If GOP legislative leaders marshal the votes, union dues will become voluntary in New Hampshire.
Voters also rewarded right-to-work proponents. Wisconsin and West Virginia recently passed right-to-work laws. At the time, unions warned legislators would pay a price for crossing them. They didn’t. Not a single Wisconsin legislator who voted for right-to-work lost. Instead Republicans gained seats. Every legislator who voted for the (vetoed) Missouri right-to-work bill won too.
In West Virginia, Republicans lost a seat in the state house while gaining four in the state senate. What had been a narrow 18–16 senate majority has ballooned to 22-12. Voters returned almost everyone who voted for right-to-work.
Right-to-work batted 0.667 in initiatives, too. South Dakota voters rejected an anti-right-to-work initiative. Alabama voters put right-to-work into their state’s constitution. But Virginia voters did not. The legislature had proposed amending the Virginia constitution to protect worker freedom. Unfortunately, the amendment’s ballot description was confusing. It read:
Should Article I of the Constitution of Virginia be amended to prohibit any agreement or combination between an employer and a labor union or labor organization whereby (i) nonmembers of the union or organization are denied the right to work for the employer, (ii) membership to the union or organization is made a condition of employment or continuation of employment by such employer, or (iii) the union or organization acquires an employment monopoly in any such enterprise?
Neither side spent much money campaigning on the issue. Many voters had no idea what this meant and voted “no.” Though the measure lost by seven points, Virginia’s right-to-work statute remains law.
While these victories matter, the election’s impact on the Supreme Court is the biggest right-to-work victory of all. The legal left has proposed that the courts creatively reinterpret the National Labor Relations Act to forbid right-to-work in the private sector. If Merrick Garland replaced Justice Scalia, these arguments could easily have carried the day, eliminating right-to-work across the private sector. That won’t happen now.
Instead, an originalist Justice is likely to fill the Scalia vacancy. That makes it very likely the 4-4 split in Friedrichs v. California Teachers Association will become a 5-4 ruling that compulsory union dues in government violate the First Amendment. Every government employee nationwide may soon enjoy right-to-work protections. Tuesday’s election mattered.