By Loren Kaye
Sometimes it seems that nobody likes California’s direct democracy — except the voters.
Some legislators seem to resent it. During the last legislative session (and the fifth time since 2009), lawmakers approved a bill that would have prohibited proponents of an initiative, referendum or recall from paying petition circulators on a per-signature basis. Had the governor signed the bill, it would have prohibitively raised the costs to qualify statewide ballot measures.
Now the referendum power has come under fire from a different direction. A proposed constitutional amendment is awaiting action in the state Senate to change the historic burden of proof for passing a referendum, thereby constraining the ability of voters to reconsider a bill passed by the Legislature.
The frustration over the attempted recall of Gov. Gavin Newsom, easily turned back by the governor, has elicited proposals by legislators to raise the bar on recalling elected officials.
It’s hardly surprising that politicians resent the people’s exercise of legislative powers or intra-election accountability, but now a new line of attack on the initiative power has been mounted from an unusual venue: Alameda County Superior Court.
In a case challenging Proposition 22, the 2020 measure giving app-based drivers benefits and rights and maintaining their ability to provide freelance work, plaintiff labor unions argued that it’s OK to ignore the will of the voters — and a judge agreed.
Rather than giving deference to the 59% of voters approving the proposition in a high turnout election, the court went out of its way to undermine features of the initiative that enable voters to hold their elected officials accountable.
Courts historically have found that voters “stand in the shoes of the Legislature” when acting on an initiative. They provide the last word on the subject — until the next ballot measure.
This time, the court created new rules that, if sustained, will inhibit voters from passing new statutes.
First, the ruling made the odd distinction that voters may legislate when exercising powers that are inherent to the Legislature but cannot exercise a power the Legislature is specifically granted by the state Constitution. According to the ruling, voters may, like the Legislature, use the initiative to enact, amend or repeal any statute, unless the law was enacted by the Legislature under the specific direction of the Constitution. This unprecedented interpretation of the scope of the people’s initiative power is as arbitrary as it is disturbing.
The state Constitution is replete with grants of authority to the Legislature over one or another realm of public policy, from public finance to public utilities to water development. If allowed to stand and extended to these other areas, this ruling will wall off great categories of public policy from the reach of statutory initiatives.
Second, the ruling shuffled the deck on how initiatives can be amended.
In general, the Legislature can only amend a statutory initiative with a bill passed by a majority vote and then ratified by voters at a statewide election. In some cases, initiative drafters enable the Legislature to amend parts or all of the initiative, sometimes insisting on supermajority approval to amend the measure.
The ruling noted this tradition, citing cases that “any doubts should be resolved in favor of the initiative and referendum power,” and that the Legislature “is free to address matters that are related to, but distinct from, the subjects covered by the initiative or which the initiative does not specifically permit or prohibit.”
But when it came to a particular restriction on legislative amendment to Prop. 22, the ruling overturned it. Prop. 22 explicitly prevented the Legislature from authorizing “any entity or organization to represent the interests of app-based drivers in connection with drivers’ contractual relationships with network companies, or drivers’ compensation, benefits, or working conditions.” This provision was inserted to ensure the stability of the benefits provided by other sections of the initiative.
But in a mere three sentences, the ruling concluded that this prohibition against amending the measure was unconstitutional, because it could find no linkage between a law binding drivers to a bargaining organization and a threat to their independent contractor status. And just like that, the right of voters to define the scope of future legislative amendments to statutory initiatives has been thrown into doubt.
The final say on this case will be at the Court of Appeal or state Supreme Court. In that venue, proper deference should be given to the voters exercising their legislative powers broadly and able to guide future changes by the Legislature.
Considering the steady attacks on direct democracy from the political branch and special interests, the judiciary should be vigilant in protecting this institution.
Loren Kaye is president of the California Foundation for Commerce and Education, a think tank affiliated with the California Chamber of Commerce.