By Jackson Reese
California’s 2020 election results were stolen – not by President Joe Biden, the DCCC, or ballot harvesters but by a guy named Frank.
“Frank” is Frank Roesch, an Alameda County judge who, on August 20, declared that the votes of nearly 10 million Californians in a 2020 initiative campaign weren’t going to count. His ruling will be tested in a California appeals court.
At issue in Roesch’s courtroom was Assembly Bill 5, a 2019 change in state labor law that forced companies to transform independent contractors into regular employees. In practice, AB 5’s backers, primarily union leaders and their allies in the state legislature, said gig workers would get health insurance, rest breaks, and other benefits afforded to employees under California state law. Those union leaders did not mention that those drivers would lose what’s arguably the most attractive feature in their bargain with Uber and Lyft: the freedom to determine their work schedules.
The only winners when AB 5 passed were the union leaders who saw the new law as a step toward expanding their potential market by unionizing the gig economy.
Though aimed directly at subduing rideshare companies like Uber and Lyft, the bill left scars everywhere freelancers work – in the music industry, construction, graphic design, photography, translation and entertainment services. Independent contractors begged for relief, and some powerful incumbent business interests — like newspapers —protested and won immediate waivers. More than most, lawmakers understand Mark Twain’s adage, “Never get into a fight with a man who buys ink by the barrel.”
Uber and Lyft threatened to stop serving California – and then decided to stay and fight. They launched Proposition 22, a 2020 state ballot initiative that proposed a narrow carveout in AB 5 for app-based drivers. Some 10 million Californians helped pass the initiative, allowing gig drivers to remain classified as independent contractors.
AB 5’s backers, including the powerful Service Employees International Union, filed suit immediately, in Castellanos v. California. Following a trial last summer, Roesch declared Prop 22 unconstitutional.
In doing so, Roesch bought the union’s two arguments — first, that the initiative violated a technical provision in the drafting of a ballot measure, the “single-subject” rule. But Roesch also bought the union’s far more menacing assertion: that Californians cannot have a direct say on policy matters over which the state legislature has declared itself sovereign. One of those policy matters, Roesch concludes, is anything affecting workers’ compensation.
That conclusion should be terrifying to Californians of all political stripes — and political stripes whatever- — because California’s legislature has claimed sovereignty over virtually every aspect of life in the state. That would leave little room for the public to exercise its 111-year-old right to overrule or circumvent the legislature through referendum and initiative.
You don’t have to hold a doctorate in political science to observe that this argument turns upside down a foundational American principle: sovereignty is rooted in the people, not elected officials.
The eagerness to overturn this principle reveals the audacity of California’s government unions— those who, like SEIU, believe that any challenge to Democrats they helped elect is innately anti-democratic.
Ironically, California’s initiative, referendum and recall laws are a product of the Progressive era. Crafted in 1911, Californians earned the right to compose, qualify and then ask their fellow Californians to vote directly on proposed laws. While a judge can conclude that a ballot measure is unconstitutional, the 1911 amendment clearly recognizes the sovereignty of the people — and in the face of that sovereignty, the logic goes, legislators have no authority to overturn or amend a successful ballot measure unless the measure specifically grants them or the people the power to amend it. In other words, the people’s direct voice (as expressed in initiative and referendum) supersedes the people’s indirect voice (as represented by state legislators) does not supersede
California’s initiative process was meant to be a check on the legislature. That voice can be both freeing and limiting, but it’s not to be stripped by an overzealous judge.
That’s a conclusion one might expect even from SIEU. Over decades, SEIU and its government union allies have dumped hundreds of millions of dollars into initiatives to expand government, raise taxes, limit personal freedom, and crush business. But SEIU likes democracy when it serves SEIU’s interests. And since 2018, as the union has lost members and revenue, it has become more aggressive in its work to find new markets — like those in the gig economy. It’s a measure of the union’s desperation that it now finds itself working to kill the initiative process, dismantling one of the engines of its growth.
But it will still have the legislature. And in a state with a Democrat supermajority running the legislature, the initiative is among the few ways Californians can hope to reform a failing state.
California Policy Center and its allies have launched the Democracy for All coalition – to defend direct democracy. We welcome organizations and individuals from across the political spectrum to stand up for the basic constitutional right to directly engage in our government.
Jackson Reese is vice president of the California Policy Center.