All posts by Rick Hasen

California Election Law Professors Brief Arguing that Proposition 22 (the Gig Workers) Initiative Violates the California Constitution

On behalf of Joey Fishkin, Franita Tolson, and me, and with co-counsel Kathryn Eidmann and Mark Rosenbaum of Public Counsel, we just filed this proposed amicus brief in the California Court of Appeal in the Proposition 22 case. Here’s the introduction to the brief:

Amicus California Election Law Professors has reviewed the parties’ briefing and writes to address a single issue on which the parties disagree: whether a voter initiative legislating on one subject may constitutionally hamstring the ability of the California Legislature to pass legislation on a different but related subject.

If this court approves the “amendment” limitation on the Legislature’s lawmaking power contained in Proposition 22—a limitation that appears to be unprecedented in the history of California initiatives—it will work mischief and provide a roadmap for future initiatives to upset the delicate balance between legislative powers given to the People of the State of California and those given to the Legislature. It would allow a bait and switch in which voters pass an initiative on Subject A but the fine print will unconstitutionally prevent or limit the Legislature’s ability to legislate on Subject B. It will allow the trampling of political and civil rights without recourse to otherwise-permissible legislation. 

Thus, if this Court approves the structure of this initiative, we can expect something like an initiative cutting certain insurance rates but containing a limitation on “amendments” making it nearly impossible for the Legislature to impose penalties for unfair insurance practices, or an initiative creating affordable housing opportunities but containing a limitation on “amendments” preventing the Legislature from overriding zoning rules in California cities. 

In Proposition 22, California voters were told that initiative approval meant treating “gig workers” such as Uber drivers as independent contractors rather than employees for purposes such as workers’ compensation laws. But the substance of the initiative was silent on whether gig workers could have someone represent them collectively to do things like bargaining over working conditions. No provisions in the initiative limit collective bargaining and the initiative’s statement of purposes says absolutely nothing about collective bargaining rights. And yet deep in Proposition 22’s fine print (on the bottom of page 8 to the top of page 9 of a 10-page measure), in the guise of providing limitations on “amendments,” the measure bars the Legislature from enacting any law governing the collective bargaining rights of gig workers unless seven-eighths of the Legislature agrees, a nearly insurmountable margin for any controversial measure. 

If Proposition 22’s proponents wanted to bar entities from assisting gig workers in collective bargaining, they should have included a provision doing so in the substantive provisions of the initiative. Perhaps the proponents did not do so because a proposal to prevent collective action by gig workers could have been politically unpopular, making the measure less likely to pass. 

So proponents—leading ride-share and app companies who benefit financially from a non-organized workforce—tried instead to achieve the same aims indirectly by hamstringing the Legislature from passing collective bargaining legislation related to gig workers. They styled separate legislation on the topic of gig workers’ collective bargaining rights as an “amendment” to Proposition 22, and then subjected such an “amendment” to an onerous seven-eighths supermajority requirement. Such a structure in a voter initiative appears unprecedented among California initiatives. 

As explained below, the structure of Proposition 22 violates the separation of powers contained in the California Constitution. Although Article II, section 10(c) of the Constitution gives initiative proponents the ability to say that the Legislature may not offer amendments (or must meet supermajority requirements to offer amendments) on the same subject as that of the initiative—a requirement necessary to ensure that the Legislature does not pass laws nullifying provisions in voter-approved initiatives—the Constitution does not give initiative proponents the ability to say that the Legislature may not offer legislation (or must meet supermajority requirements to offer legislation) on a different but potentially related subject. 

This Court should hold that the portion of Proposition 22 requiring seven-eighths legislative approval for laws regulating the collective bargaining rights of gig workers is unconstitutional. Because the drafters of Proposition 22 engaged deliberately in a manipulation of the initiative process, this Court should hold invalid all of Proposition 22 despite its severability clause. Without such a strong remedy, there will be no penalty for trying this gambit again; the worst that will happen is that the offending “amendment” will be excised from the measure. At the very least, this Court should declare the portion of the measure limiting legislative power unconstitutional and unenforceable. 

A ruling against the “amendment” gambit contained in Proposition 22 will ensure that initiative proponents cannot limit legislative power through the back door. It will confirm that legislatures retain the authority to pass legislation on topics that are related to, but distinct from, those an initiative actually covers. In that way, it will maintain the proper balance between the People and the Legislature in passing legislation. 

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Ohio Supreme Court Rejects Legislative Maps Again; Chief Justice O’Connor, a Retiring Republican, Calls Out Redistricting Commission Members and Republican Judges on 6th Circuit Panel

Extraordinary:

The commission’s refusal—on four occasions—to abide by this court’s rulings has created a crisis that it has the ability to resolve. Yet, despite the federal court majority’s feigned interest in “buy[ing] Ohio more time to both make a new map and find ways to shorten the implementation of that map,” id. at *25, it effectively instructed the Republican members of the commission that all they had to do to get their way was to wait out the clock until May 28—despite the valid order of this court ordering the commission to adopt an entirely new General
Assembly–district plan that complies with the Ohio Constitution by May 6, League of Women Voters of Ohio v. Ohio Redistricting Comm., _ Ohio St.3d , 2022- Ohio-1235, N.E.3d _, ¶ 78-79 (“League IV”).


In light of this court’s limited role in the redistricting process, setting aside differences and working together is the responsibility of the commission members in upholding their oaths of office as elected officials—oaths that are taken not to ensure that one political party has a supermajority but to obey Ohio’s Constitution.


Setting aside differences and working together is surely also what Ohio’s voters envisioned that the commission members would do in exercising their responsibilities as part of the commission….

The latest actions by the commission make clear that without the federal court’s April 20 opinion, there might have been a chance at getting Ohioans a fair map. The federal-court majority brushed off Chief Judge Marbley’s supposition that the Republican members of the commission would “wait out the clock rather than work with the legislature and the Ohio Supreme Court to figure out a new map and, if necessary, a revised election timeline.” Gonidakis, 2022 WL 1175617, at *25, fn. 19. But as Chief Judge Marbley predicted, they did just that….

The Ohio Supreme Court and the Ohio Constitution should not be held hostage by a redistricting commission acting according to partisan directives and a legislature that has created a crisis due to its own inaction. Any threat to Ohioans’ right to vote in this scenario stems entirely from the commission’s repeated failures to comply with this court’s rulings and the General Assembly’s refusal to set a workable primary date. The remedy, then, should not be the approval of an unconstitutional map that rewards those who created the crisis to begin with. The remedy, instead, must be to craft a resolution of the manufactured crisis by those with the authority to do so—the commission and the legislature.

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“Trump Said to Have Reacted Approvingly to Jan. 6 Chants About Hanging Pence”

NYT:

Shortly after hundreds of rioters at the Capitol started chanting “Hang Mike Pence!” on Jan. 6, 2021, the White House chief of staff, Mark Meadows, left the dining room off the Oval Office, walked into his own office and told colleagues that President Donald J. Trump was complaining that the vice president was being whisked to safety.

Mr. Meadows, according to an account provided to the House committee investigating Jan. 6, then told the colleagues that Mr. Trump had said something to the effect of, maybe Mr. Pence should be hung.

It is not clear what tone Mr. Trump was said to have used. But the reported remark was further evidence of how extreme the rupture between the president and his vice president had become, and of how Mr. Trump not only failed to take action to call off the rioters but appeared to identify with their sentiments about Mr. Pence — whom he had unsuccessfully pressured to block certification of the Electoral College results that day — as a reflection of his own frustration at being unable to reverse his loss.

The account of Mr. Trump’s comment was initially provided to the House committee by at least one witness, according to two people briefed on their work, as the panel develops a timeline of what the president was doing during the riot.

Another witness, Cassidy Hutchinson, a former aide to Mr. Meadows who was present in his office when he recounted Mr. Trump’s remarks, was asked by the committee about the account and confirmed it, according to the people familiar with the panel’s work. It was not immediately clear how much detailed information Ms. Hutchinson provided. She has cooperated with the committee in three separate interviews after receiving a subpoena.

Taylor Budowich, a spokesman for Mr. Trump, criticized the committee’s work. “This partisan committee’s vague ‘leaks,’ anonymous testimony and willingness to alter evidence proves it’s just an extension of the Democrat smear campaign that has been exposed time and time again for being fabricated and dishonest,” he said. “Americans are tired of the Democrat lies and the charades, but, sadly, it’s the only thing they have to offer.”

Mr. Budowich did not address the substance of the information provided to the committee.

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NYT: Federal Grand Jury Looking at Trump Lawyers Eastman, Giuliani, Ellis in Connection with Fake Electors Scheme

NYT:

The Justice Department has stepped up its criminal investigation into the creation of alternate slates of pro-Trump electors seeking to overturn Joseph R. Biden Jr.’s victory in the 2020 election, with a particular focus on a team of lawyers that worked on behalf of President Donald J. Trump, according to people familiar with the matter.

A federal grand jury in Washington has started issuing subpoenas in recent weeks to people linked to the alternate elector plan, requesting information about several lawyers including Mr. Trump’s personal lawyer Rudolph W. Giuliani and one of his chief legal advisers, John Eastman, one of the people said.

The subpoenas also seek information on other pro-Trump lawyers like Jenna Ellis, who worked with Mr. Giuliani, and Kenneth Chesebro, who wrote memos supporting the elector scheme in the weeks after the election.

A top Justice Department official acknowledged in January that prosecutors were trying to determine whether any crimes were committed in the scheme.

Under the plan, election officials in seven key swing states put forward formal lists of pro-Trump electors to the Electoral College on the grounds that the states would be shown to have swung in favor of Mr. Trump once their claims of widespread election fraud had been accepted. Those claims were baseless, and all seven states were awarded to Mr. Biden.

It is a federal crime to knowingly submit false statements to a federal agency or agent for an undue end. The alternate elector slates were filed with a handful of government bodies, including the National Archives.

The focus on the alternate electors is only one of the efforts by the Justice Department to broaden its vast investigation of hundreds of rioters who broke into the Capitol on Jan. 6, 2021.

In the past few months, grand jury subpoenas have also been issued seeking information about a wide array of people who organized Mr. Trump’s rally near the White House that day, and about any members of the executive and legislative branches who may have taken part in planning the event or tried to obstruct the certification of the 2020 election.

The widening and intensifying Justice Department inquiry also comes as the House select committee investigating the efforts to overturn the election and the Jan. 6 assault prepares for public hearings next month.

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In a Major Development, Georgia SOS Brad Raffensperger Apparently Wins Outright Rather Than Going to a Runoff Against 2020 Election Denier, Jody Hice; What It Means

It appears that Georgia Secretary of State Brad Raffensperger running for reelection in the Republican primary received over 50 percent of the vote, thereby avoiding a runoff. He defeated Congressman Jody Hice, who embraced the Stop the Steal movement and the false claim that the 2020 election was stolen from Donald Trump.

It is hard to overstate how dangerous it would be for an election denier to be the chief election officer of a swing state during the 2024 elections. I wrote in the Harvard Law Review Forum about how having people run elections who refuse to accept the reality of 2020 greatly increases the risk of a stolen election in the future.

Trump opposed Raffensperger, who famously released the recording of Trump pressuring him to “find” 11,780 votes to flip the state of Georgia presidential election results from Biden to Trump. Trump supported Hice. He also supported former Senator David Purdue, who ran against incumbent governor Brian Kemp in the Republican gubernatorial primary on an election conspiracy platform. Kemp trounced Purdue, beating him by around 50 points.

So what lessons can we learn from this? First, the majority of Republican voters in Georgia were not animated by Trump’s election denial claims; it didn’t get a majority to turn against Kemp. That’s good news.

Hice did somewhat better against Raffensperger, though, and there’s some question as to whether some Democrats crossed over and voted in the GOP primary to help Raffensperger avoid a runoff. [Update from the AJC: “About 7% of voters in this year’s Republican primary previously cast ballots in the Democratic primary in 2020, according to state election data analyzed by The Atlanta Journal-Constitution.”]

This still means that about a third of Republican primary voters were willing to vote for an election denier. And an election denier, Doug Mastriano, is going to be the GOP nominee for governor in Pennsylvania. Around the country, election deniers are winning local races, and signing up to be poll workers. Some already work in election administration.

While election denial is not swinging most elections to election deniers, being an election denier is hardly disqualifying among many voters for those seeking to run electins.

So we are not out of the woods yet. Far from it. But this is a good result tonight that is a relief.

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Disagreement Among PA Republicans Over Decision to Take Oz’s Side in Fight Over Counting Ballots Missing Dates in McCormick-Oz Race

Philly Inquirer:

 “A top Pennsylvania Republican operative and adviser to David McCormick’s Senate campaign accused state GOP chairman Lawrence Tabas of trying to ‘invalidate’ Republican votes by opposing McCormick’s lawsuit urging election officials to count undated mail ballots.

Jim Schultz, who previously served as senior White House counsel under former President Donald Trump, on Tuesday said the party’s opposition sends a message that Tabas “cares so little” about Republican voters who supported McCormick in Senate primary.

“This is quite surprising since it is his job to grow GOP voters and bring the party together, not to cast them aside and drive wedges,” said Schultz, who has long helped run Republican campaigns in the state.”

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“Votebeat launches as a permanent newsroom”

Axios shares the very good news:

Chalkbeat, the nonprofit news outlet that covers education at the local level, has raised $3.1 million to permanently launch a separate newsroom called Votebeat that will be dedicated to covering voting at the local level.

Why it matters: Votebeat is the only outlet in America that covers local voting exclusively. It will launch in four states to start on Tuesday, but plans to eventually expand to all 50 states with up to three reporters in each, its editor in chief Chad Lorenz told Axios.

Details: Beginning Tuesday, Votebeat will have nine full-time staffers, with plans to grow its team through the 2022 midterms and beyond.

  • It launches with a new website, votebeat.org, a national newsletter highlighting its top story and a series of local newsletters in its four launch states: Arizona, Michigan, Pennsylvania and Texas.
  • All reporters have gone through a two-week intensive training on local elections. The idea is to cover everything from misinformation to legal battles and mechanics around voting.
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“Financing of Races for Offices that Oversee Elections: May 2022”

New from the Brennan Center:

Recent devel­op­ments in elec­tion offi­cial races, includ­ing an analysis of the most recent campaign finance data avail­able for secret­ary of state races in the states in our sample, reveal some key trends.

  • Money is flow­ing into secret­ary of state races at a rate not seen in recent memory. Across the six battle­ground states we are track­ing, candid­ates have collect­ively raised $13.3 million, more than two and a half times the $4.7 million raised by the analog­ous point in the 2018 cycle, and more than five times that of 2014.
  • New data in secret­ary of state contests reveals elec­tion deniers in Arizona, Geor­gia, and Nevada either in the lead or running a close second in fundrais­ing. On the other hand, candid­ates who have condemned elec­tion denial have over­whelm­ing fundrais­ing leads so far in Michigan and Minnesota.
  • Illus­trat­ing the nation­al­iz­a­tion of secret­ary of state races, national groups and donors are spend­ing to influ­ence them, includ­ing Donald Trump’s lead­er­ship PAC and others with ties to efforts to chal­lenge the 2020 result. On the other side, several national liberal groups are newly becom­ing active in secret­ary of state and local races to support oppon­ents of the Big Lie.
  • Donors who have not given to secret­ary of state candid­ates before are making major contri­bu­tions with a clear pattern of support for elec­tion denial candid­ates or for candid­ates who are running on the threat elec­tion denial poses to demo­cracy.
  • Elec­tion denial claims, as well as claims that it is an exist­en­tial threat to demo­cracy, are heat­ing up at the state level, and they are also show­ing up in more local elec­tion offi­cial contests, notably in Geor­gia and Nevada. Super PACs on both sides of the issue spent to influ­ence local races in Wiscon­sin in April. In those elec­tions, of the six candid­ates suppor­ted by outside messaging cast­ing doubt on the last elec­­tion, five won office, and three of those unseated incum­bents.
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