What’s next for Prop 22

Welcome to the Tuesday, August 24, Brew. Here’s what’s in store for you as you start your day:

  1. California judge rules 2020 measure regarding app-based drivers is unconstitutional
  2. Register for our Aug. 25 briefing on the recall of California Gov. Gavin Newsom
  3. New York’s new governor to take office today

California judge rules 2020 measure regarding app-based drivers is unconstitutional

Alameda County Superior Court Judge Frank Roesch ruled on Aug. 20 that two sections of California’s Proposition 22 (Prop 22) were unconstitutional, and the entire measure was unenforceable. Roesch ruled that Prop 22 unconstitutionally limited the power of the legislature and violated the state’s single-subject rule for ballot measures. 

Proponents of Prop 22 have announced they would appeal Roesch’s ruling. UC Berkeley law professor Catherine Fisk, who filed an amicus brief on behalf of the plaintiffs, told the Los Angeles Times there could be a stay of Judge Roesch’s ruling within two weeks. She also said, “After consideration by the state court of appeals, it will eventually be decided by the California Supreme Court.”

Voters approved Proposition 22, 59% to 41%. It defined app-based transportation (rideshare) and delivery drivers as independent contractors. It also created labor and wage policies specific to app-based drivers and companies, such as an earnings floor, healthcare subsidy requirements, training programs, and accidental death insurance requirements.

A group of plaintiffs—including the Service Employees International Union (SEIU)—filed a lawsuit challenging Prop 22 in January. The plaintiffs alleged Prop 22 removed app-based drivers from the state’s system of workers’ compensation, limiting the legislature’s constitutional power to extend workers’ compensation benefits to app-based drivers. The plaintiffs also said the measure violated single-subject rules because voters “were not told they were voting to prevent the Legislature from granting the drivers collective bargaining rights, or to preclude the Legislature from providing incentives for companies to give app-based drivers more than the minimal wages and benefits provided by Proposition 22.”

Prop 22 overrode California Assembly Bill 5 (AB 5), which Gov. Gavin Newsom (D) signed into law in 2019. AB 5 created the presumption that a worker is an employee, rather than an independent contractor, unless the hiring business can prove otherwise. 

Prop 22 was the most expensive ballot measure in California’s history and was the first time voters decided a statewide measure on gig economy policies. Proponents of Prop 22, including DoorDash, Instacart, Lyft, and Uber, raised $205.4 million to support the measure. Opponents, including two SEIU locals, the International Brotherhood of Teamsters, and other unions, raised $18.9 million. 

Roesch was appointed to the Alameda County Superior Court by Gov. Gray Davis (D) in 2001. He was re-elected without opposition ever since, most recently in 2020. In Massachusetts, proponents filed two versions of a measure similar to Prop 22 with the state attorney general’s office on Aug. 4. The Massachusetts attorney general’s office must approve these initiatives to ensure they comply with the state’s single-subject rule before proponents can gather signatures.

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Register for our Aug. 25 briefing on the recall of California Gov. Gavin Newsom  

In other California news, the Sept. 14 recall election is less than a month away. As we’ve regularly covered in the Brew, California voters will decide whether to recall Gov. Newsom (D). The Ballotpedia Power Index (BPI) estimates that, as of Aug. 20, there is a 73% chance Newsom will be retained and a 27% chance he will be recalled.

The BPI is an election forecasting tool that factors in polling averages from RealClearPolitics and share prices on PredictIt to project the overall chances of an outcome occurring in an election. The chart below shows the BPI for the first recall question in this election. In other words, a 60% score for no and a 40% score for yes would mean that, according to the combination of polling averages and PredictIt prices, there would be a 60% chance of voters not recalling Newsom and a 40% chance of voters recalling Newsom.

Should he be recalled, Newsom would be the second California governor in history to be recalled, and voters would choose his replacement on the same ballot. Forty-six candidates, including nine Democrats and 24 Republicans, are running in the election. The candidates with the most media attention and performing best in polls so far are YouTuber Kevin Paffrath (D), 2018 gubernatorial candidate John Cox (R), radio host Larry Elder (R), former San Diego Mayor Kevin Faulconer (R), California State Board of Equalization member Ted Gaines (R), former Olympian and television personality Caitlyn Jenner (R), and Assemblyman Kevin Kiley (R).     

Do you want to learn more about the Newsom recall? We’re holding a briefing tomorrowAug. 25 at 11 a.m. CTto discuss the latest news, how the recall election will work, and identify parallels to the state’s 2003 recall of Gov. Davis (D). Marquee staff writer Joel Williams and I will cover all of that (and more!), so be sure to click the link below to register and join us then. And if you can’t attend the briefing live, we’ll email you the link to watch it on your schedule.

Register now! 

New York’s new governor to take office today

New York’s new governor—former Lt. Gov. Kathy Hochul (D)—takes office today following the resignation of former Gov. Andrew Cuomo (D). Cuomo announced his resignation on Aug. 10. 

The Gothamist said Cuomo’s resignation would be effective at 11:59 p.m. on Aug. 23, and New York Court of Appeals Chief Justice Janet DiFiore would swear Hochul in as governor just after midnight Tuesday morning. A ceremonial swearing-in event is planned for later this morning.

Until Hochul selects a new lieutenant governor, Senate Majority Leader Andrea Stewart-Cousins (D) will assume the duties of that office, such as serving as governor when Hochul is out of state. A 2009 New York Court of Appeals ruling determined that the governor can appoint a new lieutenant governor if that position is vacant.

Cuomo is the ninth governor of New York to resign. Nationwide, 218 state governors have resigned before the expiration of their terms since 1776. Of these, 76% took place because the governor was elected or appointed to another office, 7% took place following allegations of misconduct, and 17% were for various personal reasons, such as illness or policy disputes with the state legislature.

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