A work of speculative jurisprudence, set twenty-five years in the future, that hauntinly prophesies the court cases that await in the wake of 2010’s Citizens United v. FEC decision…
by: Robert Trueblood
Supreme Court of the United States
American Political Opportunities Commission v. Thomas Morrisan, Et Al
April 40, 2049
Justice Harrison, dissenting
With this verdict, the majority follows flawed logic into a structure of government that is antithetical to the spirit of our nation. My esteemed colleagues have another dissent which lays out the myriad flaws in the majority’s legal reasoning, but I feel we in the dissent must not only use this forum to explain why the majority is wrong, but what leaps of logic have brought us to this point.
Three streams of logic converge into this ruling.
The first begins at Citizens United v. Federal Elections Commission (2010). Citizens United was nominally about a partisan film studio bucking against restrictions on releasing political content just before an election. The court elected to take up a larger question. Their judgment regarded spending by corporations during and around elections. Under the understanding that corporations are associations of citizens, and as citizens have the right to free speech, they ruled that corporations must be granted the same rights. They held that restricting election spending from corporations infringed upon their free speech rights, since money is used by parties to facilitate speech. In their opinion, limits on corporate expenditures are therefore unconstitutional. This opened the door for vast amounts of money to flood into the political process, and (despite the court’s protestations at the time) it is possible to draw a direct line between those parties who contributed heavily through Political Action Committees and those who the government has treated favorably.
This decision laid the basis for Crafty Creations Inc. v. Georgia Elections Commission (2026). The plaintiff began offering their employees a monetary bonus for those that cast a ballot. This was presumed to be in violation of 18 U.S. Code § 597, which prohibited ‘Whoever makes or offers to make an expenditure to any person, either to vote or withhold his vote, or to vote for or against any candidate’. Regardless, the majority pointed out that it is not illegal for someone to express personal gratitude for someone having cast a vote. Since money and speech are seemingly interchangeable, it could not be constitutional to restrict companies from praising employees for participating in elections. They further compared this to a corporation that elected to give their employees time off to vote, with the ‘bonus’ being wages for time spent casting ballots. 18 USC § 597 was therefore rendered unconstitutional.
Crafty v. GEC was then itself cited in Finnigan’s Market v. California Electoral Commission (2029). In the wake of that decision, Finnigan’s Market had adopted Crafty’s framework for rewarding voters. However, Finnigan’s was concerned that their employees would skirt the rule by simply passing around an ‘I voted’ sticker rather than actually voting. No evidence that this had occurred was presented. To prevent this hypothetical fraud, the company dictated that to receive the compensation the employee was required to use the company’s mail service to post their mail-in ballots. This court ruled that such measures were at the discretion of the employer, and since the company had no insight into the manner of the employees’ vote it did not infringe on the sanctity of the secret ballot.
Finnigan’s rule was expanded in Nathan’s Hardware Inc. v. Nevada Elections Commission (2036). Nathan’s had adopted similar procedures, but was particularly aggrieved by the idea that their employees may be spoiling their ballots in order to get the payment without ‘materially contributing to the election’. To that end, they stated that they should be allowed to view their employees’ ballots before they were sent to ensure they were not spoiling their vote. It was ruled that this too was within a company’s authority. They affirmed that merely reviewing a ballot to ensure completion was not an undue burden on the employee, and a small price to pay to ensure employees were not defrauding their employer.
The decisions of the Majority, in every case listed above, rested on a single principle: that despite a corporation adopting increasing requests to invade their employee’s privacy, there was nothing requiring the employee to participate. Further, that no penalty would be applied to any employee that refused to comply. But that supposition was already under attack by our second stream of ‘logic’.
In Elrod v. Burns (1976), the majority stated that employment cannot be contingent on express political speech, which was later reiterated in Branti v. Finkle (1980). Both cases had left in a provision for ‘policymaking individuals’, whose employment status could be dependent on political affiliation. This was the genesis of a long stream of jurisprudence on exactly what could be considered a ‘policymaking individual’. District Attorney’s, Sheriff’s Deputies, and other municipal offices each tested the limits of this exception on employees with increasingly dubious links to that claim. But Prior to Michaels v. Emerson (2038), the court had refused to review any of these rulings.
Michaels v. Emerson would codify the lower court’s opinions. Douglas Emerson, shortly after being elected mayor, implemented a ‘vote rewards’ scheme as outlined in Nathan’s Hardware. Sarah Michaels, an accounting clerk for the municipality, alleged that shortly after voting for elected officials opposed to Emerson she was terminated. She believed her termination was in retaliation for her vote, something collaborated by public statements made by Douglas Emerson. Michaels argued that she had no material influence over policy, and as such could not be considered for the exception in Elrod v. Burns. The majority disagreed, and ruled that since she helped provide documents that were used in creating public policy, she could be considered a policy maker. Therefore her employment could be conditional on specific political support.
And with that, the damn burst.
Organizations like the Oregon Public Affairs Advisors and Michigan Citizen Insite Committee began sprouting up. They submitted briefs to ‘influence policy’ to government agencies, which they also ‘sold’ to political committees for disproportionate sums. One such report by the later organization read (in its entirety) ‘The citizens of Michigan support the governor’s current policies’. In reality, the sales of these ‘reports’ to private corporations appeared to be a cover for corporations bankrolling and influencing their electoral efforts. In the two months prior to elections, these companies would ‘contract’ ‘political consultants’ and pay them for a small amount of their time. Though the hourly compensation never exceeded the minimum wage, the company would provide a sizable bonus if their contractor voted during that time. Crucially, the bonus would only be paid out if you were still employed at the end of your shift. As such, if you refused to vote through them in the exact manner they directed, your employment would be terminated and you would receive nothing. Since the ‘employee’ ostensibly engaged in activity that aided ‘policy making’, all of this fell within the limits of that precedent. Some even went so far as to collect the ballots that were filled out in opposition to their agenda, but ‘forget’ to post them until after the voting deadline.
Citizens attempted multiple times to file a suit that could vindicate their rights. District and appellate courts held universally that Micheals v. Emmerson was the law of the land, and courts dismissed every single case on those merits. This court refused to review any of their decisions. This terrible ruling remains settled law.
In the dissenting opinion that Micheals v. Emmerson, we stated that it was ‘the death knell for democracy’. This turns out to be incorrect, for there was one further depth yet to be plumbed. And for that, we must introduce the third stream of jurisprudence.
In Crawford v. Marion County Election Board (2005), the Supreme Court had ruled that requiring citizens to provide photo identification to cast or register to vote was not an undue burden. They cited the state’s legitimate interest in preventing voter fraud. As states stampeded to enact their own legislation, one elected to go further. In 2027, the state of Florida further mandated a specific ‘Florida Voter ID card’ would be required in order to register to vote. This was challenged in the courts, but it was upheld by the 11th circuit on the ground that it was functionally similar to normal registration. This court refused to take up the case.
Later, it was mandated that all such licenses must be produced by one company, Sunshine Identification LLC. But Sunshine Identification has been reluctant to work with specific registries, and as such they have refused to enter into agreements that would permit those registries to submit applications for voter ID cards. While they never explicitly state why they refuse to do business in these areas, it is impossible to ignore that these have primarily been registries in majority minority areas. Again this was challenged as an ‘undue burden’, and came to our desk in Miami-Dade Registries v. Sunshine Identification LLC (2030). Citing Citizens United, the majority held that if corporations had the right to speech it follows that they have the same right to free association. As such, the Government could not compel this corporation to do business with specific other entities, or require them to associate with organizations with whom they could not reach an ‘equitable agreement’. And since the state had determined that this was the best course of action, and they are responsible for creating rules for their elections, this court must abide by their decision.
Enter the American Public Opportunities Commission (APOC). APOC operates a ‘political consultant’ firm in West Virginia, operating primarily in areas lacking serious economic opportunities. Unlike other organizations, their employees remain on the books year round and are paid a stipend for minimal work (as well as, of course, a hefty bonus for voting). Also unlike previous agencies, the APOC also has strong connections with West Virginian Registrations Ltd (WVR), which was established as a sister operation to Sunshine Identification. As such, all APOC employees are (as a benefit of employment) provided with a West Virginian Voter Registration Card. A card that, despite their protestions to the contrary, the defense amply demonstrated is all but impossible to obtain without employment in a company associated with APOC or WVR.
Thomas Morrison is an ex-employee of APOC. Because he was listed as a policy advisor, he was required to vote through the company to maintain his employment. Because he refused to vote along company lines, he was dismissed. Aside from his dismissal, APOC also reclaimed his voter registration card. This restricted Thomas’ ability to cast his vote. He has brought suit, alleging that APOC and the ‘election industrial complex’ had engaged in a ‘unified and concerted effort to enact nothing less than corporate feudalism’.
He’s right.
But six members of this court, appointed by those benefiting from elections under these rules, affirm that there is no constitutional right to vote. That nothing done by APOC is illegal.
Through all three streams of jurisprudence, one undying lie is perpetuated. The idea that people have the right to simply refuse to participate. That people always have the choice not to engage with these schemes that would ‘reward them for public participation’. And to an extent, they are correct- Thomas Morrison, as so many people do, refused to be so coerced. But the court fails to grasp or understand the penalties individuals face for that refusal. Thomas not only finds himself unable to meaningfully participate in elections, but is also severely limited in his employment prospects. He remains unable to find persistent employment, and has been unable to re-establish his right to vote.
His case is hardly unique. While his name has taken center stage, no fewer than fourteen cases currently sit in the courts waiting for this ruling. All of them have similar facts. In each case organizations have found communities starved of opportunities and used these tactics to dominate them electorilly. The people in question do indeed have a choice not to participate, but doing so is a choice between a life dictated by the whims of a corporation, and a life driven to deprivation for want of opportunities.
Seven decades of so-called logical thought have led us to this place. One where a small number of corporate actors operate so-called advisory committees, which farm our people for their votes. Where so-called licensing corporations can use their authority to artificially limit suffrage to those retained by those committees. These people, so long abandoned, have little choice but to render themselves into nothing less than voices crying for their own subjugation.
The First Amendment concludes by granting the ‘right of the individual to petition the government for a redress of their grievances’. It is a pity it did not require the government to consider that petition without resorting to venial desire and naked partisanship.
Robert Trueblood is a storyteller from Dapp, Alberta, Canada. He currently lives in Edmonton, Alberta.
