By Anthony T. Caso

In Washington, voting rights have taken center stage. Federal lawmakers are working to ensure that state lawmakers do not infringe on the people’s power to vote.

But while California is considered one of the most democratic states in the union, a recent court decision on Proposition 22 shows that, even in California, the will of the people is not always obeyed.

In 2020, Californians adopted Prop. 22 with nearly a 60% favorable vote. The measure sought to restore Uber, Lyft, and DoorDash drivers to their status as independent contractors.

The initiative was immediately challenged by labor unions who want to organize the drivers into a union, and an Alameda County trial judge ruled that Californians had no right to adopt such an initiative.

Prop. 22 restricted the Legislature’s power to change the parts of the initiative without a super-majority vote. The initiative further provided that the Legislature could not pass a law allowing labor unions to organize the independent-contractor drivers for each company into a collective bargaining unit.

The trial court ruled that this provision was unconstitutional because it tied the hands of the Legislature. But that is exactly what an initiative statute passed by the people is meant to do.

The Constitution expressly states that the Legislature has no power to amend an initiative statute on its own unless that initiative statute grants the Legislature that power. If the people did not grant the Legislature power to amend the initiative statute, then the Constitution requires the Legislature to get the approval of the people in order to enact that amendment.  The Legislature must present its own initiative to the people, and then it must live with the people’s choice.

So how did the trial court find a way around the express command of the Constitution?

The court ruled that no other part of the initiative expressly prohibited the creation of collective bargaining units made up of “independent contractors.”  And the court is absolutely correct in that statement. There was no need to do so because the drivers would be independent contractors, not employees. Current law only allows employees to unionize.

That was the reason that the unions backed Assembly Bill 5 that changed the drivers’ status from independent contractor to employee. Once the drivers were classified as employees, the unions would be free to embark on a campaign to organize them into a bargaining unit.

Those plans were frustrated when nearly 60% of the voters in California rejected Assembly Bill 5’s application to Uber, Lyft, and DoorDash drivers. Prop. 22 reinstated those drivers as independent contractors with the freedom to set their own hours and to decide when they would work. As independent contractors, the drivers could not be required to support a labor union.

Prop. 22 protected this important provision in the section on amendments. If the Legislature wanted to change the law in order to allow unions to force independent contractors into a collective bargaining unit, the Legislature would have to get approval from California voters.

The trial judge rejected this provision because it did not address an amendment, as the judge defined that term, to other provisions of the initiative statute. Yet, in the next part of the decision, the judge treated this provision on collective bargaining as if it were in the main part of the initiative statute, rather than just in the part regarding amendments.

The critical problem with the trial court’s decision is the disdain it shows for the Constitution’s protections for the people’s right of initiative. In California, the Legislature is required to share its power with the people. As our Constitution establishes:

“All political power is inherent in the people. Government is established for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.”

The power of initiative is one of the ways that the people can reform government.  The appellate courts need to step in to make sure that this erroneous trial court decision does not take away the rights guaranteed by the Constitution.

Anthony T. Caso is a clinical professor of law at Chapman University’s Fowler School of Law and a senior legal fellow at the Claremont Institute.

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