Protection against voter intimidation may undergo significant change in the wake of the Supreme Court’s decision in Citizens United v. Federal Election Commission. In that case, the Court greatly expanded First Amendment protections afforded to corporations. With this increased protection, corporations are emboldened to increase their efforts to persuade employees to vote for particular candidates or initiatives that may favor the corporation or those at its helm with little fear of being prosecuted for voter intimidation.
This Article explains why the current environment of voter intimidation laws is untenable. The Author discusses and then rejects that the resolution propounded by the Supreme Court in NLRB v. Gissel Packing Co., which addresses voter intimidation in the context of employee unionization, could be a workable solution to the problem when it comes to political elections. Instead, the Author proposes a solution based on the decision rendered in Kunkle v. Q-Mark, Inc.; in that case, a federal court in Ohio determined that a public policy exception to the at-will employment rule exists to permit an employee to bring a civil tort action against his or her employer for adverse employment decisions based on how the employee votes in a political election. The Author argues that recognition of the public policy tort would adequately deter employers from future voter intimidation and curtail the problems made possible by the decision in Citizens United.