The outcome of a vote on a state constitutional amendment that would solidify labor rights in Illinois was still unclear Wednesday.
Ballots continued to be tallied on the measure, referred to as Amendment 1 or the Workers’ Rights Amendment, and while supporters expressed confidence in its passage, opponents said they are not ready to concede until more votes are counted.
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Constitutional amendments are difficult to pass by design: The amendment needed the approval of 60% of the voters casting ballots on the measure or a simple majority — 50% plus one vote — of the total number of ballots cast statewide.
As of Wednesday afternoon, the proposed amendment was falling short of the 60% threshold, according to unofficial results reported by The Associated Press, and the other measure for success might not be known until the vote is certified by the State Board of Elections.
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With 90% of the expected vote counted, 1.9 million people had voted in favor of the amendment, representing 58.6% of the vote on the measure, according to unofficial results from the AP.
The State Board of Elections is set to certify election results on Dec. 5, according to spokesperson Matt Dietrich.
“We don’t even begin to collect any numbers from the local election authorities until two weeks from today,” said Dietrich, adding that local election authorities must also still count late-arriving mail-in ballots and not yet adjudicated provisional ballots.
The proposed Illinois amendment would guarantee not only the right to organize for the most common elements of collective bargaining, like wages, hours and working conditions, but also for “economic welfare and safety at work.”
It also would essentially ban so-called right-to-work laws or ordinances, which prohibit companies and unions from agreeing to require union membership as a condition of employment.
“Right-to-work” laws disempower unions by allowing workers to avoid paying “fair share” fees to unions — money used for nonpolitical union costs for actions such as collective bargaining.
Despite the lack of an official outcome, amendment proponents were optimistic, saying that in some more conservative counties, the measure outperformed Gov. J.B. Pritzker’s ballot returns.
“I think it’s passed, and I think by the 60% margin,” said Marc Poulos, the Vote Yes committee’s counsel and executive director of the Indiana, Illinois, Iowa Foundation for Fair Contracting.
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Results privately tracked by the campaign committee show that the votes not yet counted will come from pro-union areas around Chicago and from mail-in ballots, which have been trending in favor of a yes vote on the amendment, Poulos said.
Vote Yes spokesperson Joe Bowen said the organization based its victory declaration on vote totals the organization collected from counties across the state.
“The truth is we are on track to pass. We declared victory for a reason,” Bowen said.
But leaders at the Illinois Policy Institute, the conservative think tank leading opposition to the amendment, said Wednesday afternoon that it was too early to concede.
“There are hundreds of thousands of mail-in votes that could still be coming in,” said Mailee Smith, IPI’s labor policy director. “We will have to wait for all of those ballots to be counted.”
If the amendment does pass, courts will likely determine how it applies to public and private sector workers, experts said. The amendment opens a slew of legal questions, including what “economic welfare and safety at work” will mean at the bargaining table, what kinds of workers are newly eligible to unionize, and in what cases federal labor laws will supersede the state constitution.
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Smith predicted that judges would rule that the amendment’s guarantees on collective bargaining rights don’t apply to private workers because of preemptive federal labor law. However, Poulos argued federal labor law does not cover independent contractors, agricultural workers and managers, so the amendment would afford those workers new rights.
Labor expert Martin Malin agreed that potential organization of agricultural workers and even likelier, platform workers employed as independent contractors by companies like Uber, Lyft or Instacart, would likely be put on the table if the amendment passes.
The application of “safety” would also likely be up to court interpretation.
Scott Gore, who practices labor law with the firm of Laner Muchin, suggested that if the amendment had been in place during the fight between Chicago Public Schools and the Chicago Teachers Union over a safe return to work during the pandemic, for example, the “safety at work” provision might have bolstered the union’s claims that working amid a rise in COVID cases compromised teachers’ health.
The amendment’s passage would also raise questions about whether certain supervisors in the public sector could organize for the first time, Gore said.
If the amendment passes, it could have national implications as approval for organized labor is on the rise across the country. Copycat legislation guaranteeing collective bargaining rights and blocking “right-to-work” laws could spread to other states, Poulos of Vote Yes said.
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“That’s the plan,” Poulos said. “Millions of people believe in our workers garnering more rights and having constitutional rights in the workplace. And to us, that is a major change in the way that this country has been moving.”
Smith said the amendment’s guarantees give government unions too much power.
“And that power allows them to negotiate things that have never been negotiated into contracts before,” she said. “That’s going to drive up the cost, and that cost is always passed to the taxpayers.”
