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Circuit Asks Alabama Supreme Court for Political Activity Ruling

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By Robyn Hagan Cain on December 30, 2011 11:19 AM

Can a law amending state payroll protocols violate free speech rights? Last week, the Eleventh Circuit Court of Appeals ruled that the answer to that question turns on the state's interpretation of the law.

Alabama permits public employees to request that the Alabama State Comptroller arrange for the payment of membership dues for employee organizations by payroll deductions. In 2010, the Comptroller's Office changed its policy regarding such deductions, and declined requests for deductions that benefited organizations involved in political activities, including the Alabama Education Association, and its political action committee, A-VOTE. Lawsuits followed.

Later that year, the legislature amended state law to codify the Comptroller's position in Alabama Act No. 2010-761 (Act). The Act prohibits a state or local government employee from arranging contributions for political activity through state-facilitated means, like payroll deductions, and requires that any organization seeking to arrange state-facilitated salary deductions must certify that none of the membership dues will be used for political activity.

There's just one problem: Organizations like the AEA collect a large portion of their dues through salary deductions, and argue that the deductions were particularly important for their members who do not have checking accounts. In February 2011, the AEA sued to enjoin the Act.

The district court found that the Act infringes on free speech rights. The Eleventh Circuit Court of Appeals, however, ruled that the statute's constitutionality turned on its interpretation, and certified two questions regarding that interpretation to the Alabama Supreme Court.

The U.S. Supreme Court has ruled that a properly-conceived ban on salary deductions to organizations engaged in political activity is constitutional because, while the government must accommodate free speech rights, it is not required to assist others in funding the expression of particular ideas. If the Alabama Act is meant to only apply to payroll deductions for organizations engaged in electioneering activities, then the statute does not pose a constitutional conflict.

For updates on how the Alabama Supreme Court interprets the Act, and the final opinion from the Eleventh Circuit Court of Appeals, keep checking FindLaw's Eleventh Circuit blog.

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