The 7/8ths Majority Requirement for Legislative Changes of Proposition 22 (2020)

Why this novel requirement on legislative changes to the Rideshare App Workers Law is constitutionally permissible

A unique and controversial factor about Proposition 22 (2020), the law classifying rideshare app workers as independent contractors passed by California voters in 2020, was its provision requiring that the California State Legislature cannot make any legislative change to the law except with a 7/8ths majority of the State Legislature.¹ Numerous opponents of Proposition 22 cited to this high numerical requirement for statutory legislative changes to urge voters to vote no.

Many have questioned whether Proposition 22’s 7/8ths majority requirement is constitutionally permissible. Because of the recent ruling by the Court of Appeals on amendment related provisions of Proposition 22, there is confusion about what kinds of requirements that ballot measures may have for legislative changes.²

California’s ballot initiative system is unique in that when voters pass ballot measures, the State Legislature cannot subsequently alter the law.³ In fact, when voters enact a ballot measure, the State Legislature can only change the enacted law when the ballot measure itself expressly permits it.⁴

The authors of Proposition 22 voluntarily wrote the 7/8ths majority requirement into Proposition 22 but they had no compulsion to do so. If the authors of Proposition 22 had wanted, they could have written the law to not permit any legislative changes whatsoever.

Why is this?

California’s ballot initiative system is a reservation of power by the citizens of California.⁵ Thus, the decision as to how to change laws passed at the ballot box is not a choice the State Legislature gives to voters, but rather the voters’ choice as to whether the State Legislature is allowed to change the law in the future.⁶ If the State Legislature wants to amend a statute passed as a ballot initiative, it only has the power to propose changes and subsequently submit the changes to voters for approval.⁷

It’s an important limitation.

If the Legislature could change laws passed at the ballot box, the Legislature could over-ride the constitutional right of the voters and assert itself over the people’s sovereignty.⁸ The ballot initiative system would lose its purpose because there would be no point to passing legislation at the ballot box. It’d just get changed if the Legislature, or its many powerful lobbyists representing a plethora of powerful interests, didn’t approve of the law.

Nevertheless, many laws passed as ballot initiatives contain provisions that allow for legislative amendment provided that it meets a certain numerical threshold of the State Legislature (often 3/5ths, 2/3rds, 3/4ths, 4/5ths of both the State Assembly and State Senate) and, more importantly, furthers the purpose of the legislation.⁹

Why allow legislative changes to laws passed by ballot initiatives?

Because if a change becomes necessary down the line, especially a minor technical change or a needed clarification in response to something that drafters of the ballot initiative did not foresee, the Legislature can make the change without having to go back to the ballot and hold an entire initiative on the subject.

The Political Reform Act of 1974, which was passed by ballot initiative, contains this kind of legislative amendment provision.¹⁰ This legislative amendment provision has proven useful for changing disclaimer rules on political advertisements since this major piece of campaign finance reform legislation was originally enacted.

Back in 1974, there were no political ads on social media or solicitations made through emails or text messages. Changes to include disclosure on political advertisements made through these kinds of media were enacted by the State Legislature without requiring a full ballot initiative on the subject.

Like many other amendment provisions in ballot initiatives, Proposition 22 requires that any statutory change “is consistent with, and furthers the purpose of, this chapter.”¹¹ Courts will ensure the amendment to legislation passed to laws enacted by ballot initiative will further the purposes of the legislation or they will strike it down as unconstitutional.¹²

Courts are not deferential to the State Legislature either in determining whether the purposes are furthered.¹³ Thus, even if a 7/8ths majority was achieved by the State Legislature to change provisions of Proposition 22, a court would hold those changes unconstitutional if the court found that the changes did not further the purposes of Proposition 22.

Some readers may be confused because the Court of Appeals struck down two provisions pertaining to the legislative amendment of Proposition 22.

The Court of Appeals struck down two provisions of Proposition 22, Section 7465(c)(3) and Section 7465(c)(4), as unconstitutional.¹⁴ However, they did not do so on the grounds that the 7/8ths majority was too high a burden for change. They did so on the grounds that both provisions violated the constitutional separation of powers.

Section 7465(c)(3) and Section 7465(c)(4) defined what constituted an amendment to Proposition 22.

Section 7465(c)(3) provided that “Any statute that prohibits app-based drivers from performing a particular rideshare service or delivery service while allowing other individuals or entities to perform the same rideshare service or delivery service, or otherwise imposes unequal regulatory burdens upon app-based drivers based on their classification status, constitutes an amendment” and cannot be enacted without a 7/8 majority vote of the State Legislature.¹⁵

Section 7465(c)(4) provides that “Any statute that authorizes 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, constitutes an amendment” and cannot be enacted without a 7/8 majority vote of the State Legislature.¹⁶ This provision has been interpreted as prohibiting collective bargaining by rideshare app workers.¹⁷

The California Constitution expressly provides for the separation of powers.¹⁸ The judicial branch of government has the exclusive authority to interpret the law.¹⁹ As the Court of Appeals explained, it is ultimately the job of the court to determine whether a state legislative change to a law passed by a ballot measure is an impermissible amendment.²⁰ Because defining what constituted an amendment impermissibly restricted the court's authority to interpret the law, the court held these provisions were unconstitutional.²¹

Furthermore, the Court of Appeals held that Section 7465(c)(4) impermissibly restricted the Legislature’s authority since it restricted the Legislature's ability to legislate on the issue of collective bargaining for rideshare app workers.²² The Court reasoned that the State Legislature had the power to enact laws in areas where ballot measures had been passed.

The Court explained that no other provision of Proposition 22 addressed collective bargaining legislation and collective bargaining legislation would not change Proposition 22's designation of rideshare app workers as independent contractors, since independent contractors can in some cases collectively bargain.²³

I am uncertain as to whether I agree with the Court in this instance. This is a case of first impression. The Court did not cite any previous case law that struck down ballot measures for improperly including definitions of an amendment. However, it may be that no other ballot measures have included this kind of definition. The argument could probably be made either way. And whether one agrees depends upon whether one is more of a legal formalist or a legal realist in their approach to legal interpretation.

While one can argue that only the judicial branch has the authority to interpret what an amendment is, one can also argue that the voters have the authority to specify what can be amended and what cannot be amended. Should the voters include a provision allowing the Legislature to amend a ballot initiative, a court would decide whether a legislative amendment truly furthers the purposes of that law.

However, since a law cannot be amended without express voter permission in the ballot initiative in the first place, it doesn’t follow that a court’s core constitutional function is deprived by the definition of an amendment. The voters are specifying what they are willing to allow be amended legislatively and what they are unwilling to have amended legislatively.

Moreover, The Court of Appeals may have misread California Supreme Court precedent, which has held that the Legislature is not prohibited from enacting legislation in a general area addressed by a ballot initiative.²⁴ If the voters have the authority to restrict rideshare app workers from engaging in collective bargaining, seemingly they have decided to legislate in the area themselves and pre-empted the State Legislature. Have they restricted the State Legislature’s authority? Yes. But don’t they have the authority to do this anyway? Yes.

Should the California Supreme Court grant review in this case, these are novel issues to be addressed.

However, whatever the final resolution of Proposition 22 is, it does not change the permissibility of the 7/8ths majority requirement for amendments by the State Legislature. Although the 7/8ths majority change is unprecedented, it is not outside the authority of the voters to have enacted it, given that there is no requirement that the Legislature be allowed to amend Proposition 22. It is fully at the discretion of the voters.

1. Cal. Bus. & Prof. Code § 7465(a)(“After the effective date of this chapter, the Legislature may amend this chapter by a statute passed in each house of the Legislature by rollcall vote entered into the journal, seven-eighths of the membership concurring, provided that the statute is consistent with, and furthers the purpose of, this chapter.”).

2. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author's scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.