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Special Counsel Cautions Groups on Voter Registration

The U.S. Office of Special Counsel has cautioned labor unions and other groups that they’ll have a hard time legally conducting voter registration activities on federal grounds once they’ve endorsed a candidate for partisan political office.

In a written advisory opinion issued April 14, U.S. Special Counsel Scott Bloch stated that it “would be difficult for a union, or any other organization, to conduct a truly nonpartisan voter registration drive once it has endorsed a candidate for partisan political office.”

Bloch’s advice came in response to a request from the American Federation of Government Employees, which is planning to undertake an aggressive nonpartisan voter registration effort this election year.

AFGE Assistant General Counsel J. Ward Morrow said the union — which represents 600,000 federal and D.C. government workers nationwide and overseas — has run into some resistance in recent years from administrators who wrongly believe that voter registration on government property is a Hatch Act violation.

Morrow said the AFGE sought the advice of the special counsel — which oversees enforcement of the Hatch Act — in hopes of avoiding any controversy by trying to get the counsel’s office to spell out that nonpartisan voter registration is not a Hatch Act violation.

But Bloch’s advice — which updates a 1984 advisory opinion on the issue — warns that the Office of Special Counsel won’t automatically assume that such voter drives are truly nonpartisan.

“In your letter requesting this advisory opinion, you state that the AFGE conducts voter registration in a ‘strictly non-partisan fashion,’” Block wrote. “However, we explained in our 1984 opinion, because voter registration is frequently used as a tool in partisan political campaigns, we cannot accept at face value the assertion that a planned registration drive is nonpartisan.”

Bloch said “this is particularly true once a union has endorsed a candidate for partisan political office, because at that point, the union has become identified with the success of the endorsed candidate.”

Morrow said the AFGE won’t be deterred by the opinion and that the union would be able to continue conducting voter registration drives on federal property, even after it endorses a presidential candidate in June or July.

“We think when we have not endorsed and we’re doing no partisan voter registration, that we certainly meet all the criteria” to do that, Morrow explained. “If we were to do voter registration after an endorsement, we’d have to be more careful than we are now, but it’s not a bar.”

Bloch’s opinion stated that the OSC considers “all of the circumstances surrounding the drive,” including such factors as:

• Political activities of the sponsoring organization.

• The degree to which the group is identified with the success or failure of a partisan political candidate, issue or party.

• The nexus between the decision to undertake the voter registration drive and other political objectives of the sponsor.

• Whether particular groups are targeted for registration on the basis of a perceived political preference.

• The nature of publicity circulated to targets of the drive immediately prior to or during the drive.

“Keep in mind, though, that because of the 1993 amendments, most federal employees are now able to participate in partisan voter registration drives, provided that they are not conducted while on duty, in a government office or building, while wearing an official uniform or insignia, or using a government vehicle,” Bloch wrote. “Thus, viable means exist by which unions can encourage its members to exercise their fundamental right to vote and participate in the democratic process.”

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