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.