Rich Pedroncelli/AP Photo
Carla Shrive, right, a driver for various gig companies, joined other drivers to support a proposed ballot initiative challenging the state’s recently enacted AB-5 legislation, October 29, 2019, in Sacramento, California.
On Friday, a superior court in California struck down Proposition 22, California’s controversial, course-setting labor law. Passed via the most expensive ballot measure in American history last fall, Prop 22 carved out a third category for gig workers, neither employees nor freelancers, to subvert the state’s 2019 AB-5 legislation that classified gig workers as traditional employees and conferred upon them all the rights and protections of formal employment. For $220 million, Uber, Lyft, and DoorDash eliminated AB-5 protections, and set a new standard for states nationwide. Prop 22–style standards are on the march in Illinois, Massachusetts, and elsewhere.
Already, gig workers had run into plenty of high-profile problems with the standard that Prop 22 set. According to a recent report from National Equity Atlas, only 10 percent of drivers were receiving the promised and celebrated health stipends, with nearly three times as many drivers currently on Medi-Cal and getting no stipend at all. Prices have skyrocketed despite assurances that they wouldn’t; wages, which one study pegged at $5.64 an hour, have gone down for many despite commitments that they’d go up. As The New Republic’s Jacob Silverman pointed out, “40 percent of people who voted ‘yes’ on the measure—that is, who voted in favor of the industry’s position—thought they were ‘ensuring Uber/Lyft and DoorDash employees can earn livable wages.’”
But what made for Prop 22’s undoing was not its deceit but its detail. Alameda County Superior Court Judge Frank Roesch found that the ballot initiative’s requirement of a seven-eighths supermajority for the California legislature to amend the law was unconstitutional, because it “limits the power of a future legislature to define app-based drivers as workers subject to workers’ compensation law.” That section, per Roesch, was “not severable from the rest of the statute.” That it required all future labor law to be made in accordance with 22’s standard made it even more extreme: “It appears only to protect the economic interest of the network companies in having a divided, ununionized workforce, which is not a stated goal of the legislation,” ruled Roesch.
Thus, all of Prop 22 was unenforceable and, critically, unconstitutional. “There were several ways the drafters of the proposition overreached,” said Scott Kronland, an attorney from Altshuler Berzon, on a press call of California Rideshare Drivers organized by the Service Employees International Union on Monday.
What made for Prop 22’s undoing was not its deceit but its detail.
Prop 22 remains in place for the moment, while the legal system continues to process the ruling, and you can bet there will be appeals. (Appeals will proceed on a track to the state supreme court, not the conservative-heavy federal Court, meaning that this ruling could certainly stick.) But to borrow a sports metaphor, Prop 22’s undoing at the hands of its entirely excessive seven-eighths corollary takes a touchdown off the board for Silicon Valley because of a taunting penalty. One wonders which venture capital lawyer tucked in that flagrant caveat, and what kind of emails he’s currently receiving from gig-world investors.
From the moment of its arrival on the ballot, there were concerns among advocates and activists about the constitutionality of a law that was effectively impossible to repeal or alter. Clearly, the courts saw it the same way. The question is, then, why did California put what is now looking like a flagrantly unconstitutional proposal on its ballot for its people to vote on? Why don’t the state’s ballot measures get constitutional review before they become ballot measures? It’s hard to conceive of an order-of-operations flaw more glaring than a direct-democracy program like California’s ballot props whose rectitude gets sorted out only after they are already enshrined in law.
Prop 22 now joins an esteemed collection of high-profile, high-cost ballot measures that have been deemed unconstitutional after passing. In 2008, Proposition 8, California’s infamous same-sex marriage ban, passed via ballot measure and became state law immediately (funny enough, it began in 2000 as Proposition 22, which, after legal challenge, was merely copy-pasted onto the 2008 ballot as Prop 8). The California Supreme Court eventually upheld Prop 8, but allowed existing same-sex marriages to stand, before federal courts eventually ruled in 2010 that it was in violation of the due process and equal protection clauses of the U.S. Constitution. It’s likely that the state could have continued to pursue a defense of the law, but the attorney general’s office, run by current Vice President Kamala Harris, eventually let it go, and after a spate of unsuccessful appeals, same-sex marriages resumed in the state in 2013.
Prop 8 was preceded by Prop 187, the 1994 initiative known as the Save Our State (SOS) plan. A startlingly racist proposal supported by a majority of California voters, 187 called for the creation of a state-run citizenship screening system, to prohibit undocumented immigrants from using public education, non-emergency health care, and other social services. The law was immediately challenged, and found unconstitutional by a federal district court shortly thereafter. The state continued to defend it until 1999, when then-Gov. Gray Davis decided to put an end to the appeals. (Prop 22 owns the stand-alone distinction of not even making it to the federal court level.)
This “ask for forgiveness, not permission” style of electioneering is right at home in Silicon Valley, but it seems like a nonsensical way to run a state.
What eventually became of Gray Davis, who went on to be recalled and replaced by Arnold Schwarzenegger, who then fought to preserve Prop 8, dovetails nicely with the immediate, current-day absurdity of California’s electoral system. Even the legality of California’s current gubernatorial recall, where Democrat Gavin Newsom finds himself in a once unthinkable fight for his political life, is highly uncertain.
As UC Berkeley law professors Erwin Chemerinsky and Aaron S. Edlin write in The New York Times, the two ballot questions, one on whether to recall Newsom and a second choosing among a cattle call of 46 candidates on who should replace him, invites the potential outcome where Newsom could win the most votes and still be removed. So a Republican like Larry Elder could ride a stunningly minoritarian vote share to the state’s top office. This structure, Chemerinsky and Edlin argue, “violates a core constitutional principle that has been followed for over 60 years: Every voter should have an equal ability to influence the outcome of the election. The Supreme Court articulated this principle in two 1964 cases, Wesberry v. Sanders and Reynolds v. Sims.”
In other words, the September 14 recall might itself be found unconstitutional down the road, albeit too late to save Newsom’s job if he’s removed. How California can continue to put its most consequential political maneuvers on the ballot without first determining whether they conform to basic constitutional standards begs the question of why those rules even exist in the first place. If constitutional rules come before all others, one would think that they would be applied before those potential laws are put up for consideration.
This “ask for forgiveness, not permission” style of electioneering is right at home in Silicon Valley, but it seems like a nonsensical way to run a state. And while Prop 22 may ultimately be pared back or disposed of entirely, that’s cold comfort for workers in other states where Prop 22 standards continue to make inroads, justified by California’s as proof of concept.
A better system, where a constitutional review precedes a vote of the people, might not ensure more just outcomes—though it does seem striking that all of 187, 8, and 22 share a far right-wing vision of social and economic relations—but it would certainly ensure better ones. It would save time and a whole lot of money if the state asked these essential questions first, and did everything else later. It might even produce more democratic results if the state managed to clean up its direct democracy.
And what if it slows down the initiative process, and perhaps even creates too high a barrier to reach the ballot? Well, given the way that the system has been hijacked by corporations buying laws that they cannot get passed in Sacramento, that may be an acceptable loss.
