The Brief

Uber today lost its long-running attempt to overturn a California law that would require it to provide employment rights to its drivers and delivery workers.

The ruling by the 9th U.S. Circuit Court of Appeals could have major implications — depending what the state Supreme Court decides in a separate but related case.

Uber and Postmates, a food-delivery platform Uber now owns, alleged that Assembly Bill 5 violated their rights under the Equal Protection Clause of the state and U.S. constitutions. AB 5 requires ride-hailing and delivery companies to treat their workers as employees instead of independent contractors and codifies the so-called ABC test to determine which workers should receive benefits. Under the law, other gig companies are subject to a different test, which Uber and Postmates claimed was unfair.

The companies sued and sought an injunction against the law that took effect at the beginning of 2020. Last year, a three-judge panel at the 9th Circuit sided with Uber and revived the case, which had been previously dismissed by a federal judge.

But writing for the full 11-judge appeals court today, Judge Jacqueline Nguyen said there are “plausible reasons” for treating Uber differently from other types of companies that use gig workers, such as Wag, a platform that connects dog owners and dog walkers, because the Legislature “perceived transportation and delivery companies as the most significant perpetrators of the problem it sought to address — worker misclassification.”

More than 1.4 million workers in California do app-based driving and delivery work for big gig companies such as Uber, Lyft, DoorDash and Instacart, according to the industry’s latest estimates.

Lorena Gonzalez, chief officer of the California Labor Federation and the former state lawmaker who authored AB 5, said in a statement today: “This is a victory for all workers in the state, but especially the chronically misclassified workers in rideshare and delivery jobs. Now, we must continue to seek ways to enforce this law.”

The ruling means “the Legislature can continue to make laws that impact companies differently if the decision to do so is rational, without being concerned that such laws would violate the constitutional rights of the corporation,” said Veena Dubal, a UC Irvine law professor whose research centers on labor and inequality. “This is particularly important because so many sectors are now concentrated by two or three large companies.”

The decision also is significant because the California Supreme Court in May heard oral arguments in a case challenging the constitutionality of Proposition 22, the initiative the gig industry put on the ballot in 2020, and which a majority of California voters approved. Prop. 22 exempted Uber and other companies such as Lyft, DoorDash and Instacart from AB 5, allowing them to continue to treat their workers as independent contractors while giving them some new benefits they did not have before, such as guaranteed minimum earnings.

Uber is counting on the state’s highest court to uphold Prop. 22, on which it spent more than $57 million out of the about $200 million the gig industry put into the campaign. It contends AB 5 threatens the “flexible work opportunities” that many Californians want.

Theane Evangelis, a lawyer for Uber, in an emailed statement today reiterated the company’s position that “with AB 5 the Legislature unfairly targeted my clients out of animus rather than reason.” Uber had argued that AB 5 has many exemptions for companies that pay workers in different industries. They include live performers, music professionals, real estate appraisers and more.

But William Gould, professor emeritus at Stanford Law School and a former chairman of the National Labor Relations Board, called the opinion “eminently sensible.” Gould said the court “correctly holds that Uber and others may be covered where the Legislature deems them to be disproportionately responsible for inequality in the gig economy.”

If Prop. 22 is upheld, it would be a huge victory for Uber and the other big gig companies, but today’s ruling means they would still be on the hook in any cases where they are found to have violated laws related to worker classification before Prop. 22 took effect. In the appeals court decision, Nguyen referred to “ongoing state enforcement actions seeking retrospective relief, including civil penalties,” against Uber and Postmates.

If Prop. 22 is thrown out, the appeals court ruling means “these companies do not have this case to fall back on to exempt themselves from having to provide basic employment protections,” Dubal said.

The state Supreme Court files its written opinion within 90 days of oral argument, so its decision could come by the end of August.

On a tour of Orange County’s voting headquarters on Wednesday, Registrar Bob Page demonstrated the careful, multi-step process through which voters’ ballots are validated and counted.

As the federal government raises the specter of unsubstantiated voter fraud, Page’s message was clear: “ I want voters to know that we're doing everything we can to make sure they can vote safely and securely."

More than 380,000 Orange County ballots have been returned as of Oct. 27, Page said. That’s about 80,000 more ballots than was received around the same time in 2022, the last mid-term elections.

Orange County Registrar of Voters Bob Page addresses the media and other members of the public in attendance as part of a tour of the voting operations on Wednesday, less than one week before Election Day.

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The journey of a ballot in Orange County

Collecting, and counting, all those ballots takes time. Page explained that two-person teams are dispatched to collect dropped-off ballots every day during election season.

The ballot drop-off boxes in Orange County are made of steel, weigh more than 1,000 pounds and are bolted to the concrete, Page said.

The ballot retrieval duos are required to follow a strict process to ensure the chain of custody remains secure, including taking photos showing they’ve picked up the ballots, properly locked the retrieval door and that the internal fire suppression canister is intact.

The locations of the two-person teams are GPS-tracked by separate teams, which also review the photo evidence before giving the ballot retrieval duos the green light to go to their next stops.

An overhead camera shows the process that occurs after the signatures on a ballot have been verified and the ballot is then ready to be counted.

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Signature verification

Once a ballot reaches the Registrar of Voters’ office, the next step is ensuring the signature on the envelope matches the voter's signatures in their registration file.

“If we do challenge [a signature], we’re required under state law to send a first-class letter notice to that voter,” Page said, adding that state statute affords voters until the day before Thanksgiving this year to correct errant signatures.

Page said three election workers must agree that enough of a discrepancy exists before the decision to challenge a signature is made.

Around 1.9% of the nearly 718,000 vote-by-mail ballots returned in the June primary election in Orange County were rejected, largely due to signature mismatch or because they weren’t received in time, according to the California Secretary of State.

Verified ballots are then separated from their envelopes and sorted before they’re prepared to be scanned and, finally, counted. The equipment used to tally votes isn’t connected to the internet, and access to the room the equipment is housed in is limited, according to Page.

Threats from the federal government

On Wednesday evening, a federal judge denied an emergency request from the Department of Justice to segregate 20,000 ballots across California that the federal government said were sent to “likely” noncitizens.

More than 1,750 of those people identified were in Orange County, according to a letter Bill Essayli, top federal prosecutor for the Central District of California, delivered to the county registrar’s office Monday.

The Department of Justice said it will appeal the ruling from U.S. District Court Judge David Carter, who, in his decision, said the federal government’s attempted move could “wreak havoc and disrupt the election that is already underway.”

California Attorney Gen. Rob Bonta called the ruling an “important victory,” but warned “the fight is not over.”

On Wednesday, before the ruling came down, Bonta released resources about election integrity in the state, including guidance for local election officials if law enforcement attempts to “access election sites where ballots are cast, processed, or counted.”

Page said he’s fielded more questions from the public this year about the potential for law enforcement to interfere in the election. He said he will have open lines of communication with partners with the California Governor’s Office of Emergency Services and  Orange County Intelligence Assessment Center should the threat arise.

What’s on your ballot?

Our LAist Voter Game Plan is here to help guide you through the Nov. 3 election with guides to races across Los Angeles and Orange counties — and that long list of state propositions — to help you cast a ballot that’s in line with your own personal beliefs and values.

But the one thing we don’t do? We don’t tell you how to vote. That part is left up to you.

You can find it all at LAist.com/Vote.

The U.S. Justice Department has issued subpoenas to California officials in an escalation of its scrutiny of local election administration.

The Associated Press obtained copies of three subpoenas sent Oct. 21 to employees of the Los Angeles County Registrar-Recorder, ordering them to appear in court on Nov. 4, the day after the election. The documents request any records, documents and communications related to letters sent in July and October by federal officials to state election officials outlining allegations of noncitizens on the state’s voter rolls. The subpoenas also seek information relating to the office’s “methods for screening for unlawful voting by aliens” and anything about efforts to prevent noncitizen votes from being counted.

The subpoenas were being issued by all four U.S. attorneys in California, according to a person familiar with the matter who insisted on anonymity to discuss an ongoing investigation.

Dean Logan, the Los Angeles County registrar, said, “threats and intimidated have no place in elections.”

Subpoenas come amid ongoing court battle

The Trump administration has sued to force California to set aside up to 20,000 ballots it suspects went to noncitizens and not count them until citizenship can be verified. A district court judge on Tuesday rejected that request, then on Thursday appointed a special master to evaluate the administration’s claims.

U.S. District Judge David O. Carter did not specify the exact scope of special master Daniel B. Garrie’s responsibilities, but said he would be tasked with “developing the factual record” for the court.

In a Tuesday court hearing, Carter said he wanted to vet the federal government’s list of over 20,000 alleged noncitizen voters since there has been extensive debate over its reliability and both sides have agreed that it includes an unspecified number of citizens.

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Carter also said at the hearing that a special master could investigate California’s claims that it cannot logistically separate the ballots in time for the county election certification deadline on Dec. 3. The federal government has contested that assertion.

It is not clear what would happen if a special master did find a substantial number of noncitizen voters on the federal government’s list or whether it would affect the certification of California’s election results. The 20,000 people on the DOJ’s list constitute only a small fraction of California’s 23 million voters.

Trump administration appeals to higher court

Meanwhile, the Trump administration asked a federal appeals court to quickly weigh in.

The Justice Department said in a late Wednesday filing that it’s essential the 9th Circuit Court of Appeals issue a ruling as soon as possible due to “irreversible ballot processing occurring on an ongoing basis.”

Carter’s decision was the latest legal setback for President Donald Trump in his efforts to expand federal control over state-run elections in the midterms that will decide control of Congress for the rest of his term. The Justice Department has made similar demands in other states, including Washington. Noncitizen voting has been a central focus of Trump’s political messaging for years, although available data indicates it is exceedingly rare.

Trump blasted Carter’s ruling against the federal government on Thursday morning before heading to a campaign rally in South Carolina.

“California is very corrupt. The elections are extremely corrupt. The judge should not have done that but we’ll appeal that, of course,” he told reporters. Trump added without evidence that there are “hundreds of thousands” and then amended it to “millions, in my opinion” of “bad ballots” in California.

Carter, an appointee of Democratic President Bill Clinton, argued that the Justice Department’s demands were a clear violation of the National Voter Registration Act, which prohibits changes to voter rolls or election procedure within 90 days of an election.

A number of US citizens were included in the Justice Department’s list of names

Both sides agree that an unspecified number of citizens were inadvertently included. Carter argued that separating the ballots at this point would risk disenfranchising citizens and “wreak havoc” on the election certification process.

Over 500,000 votes have already been processed in Los Angeles County alone, according to court filings. The system also protects voter privacy: Once a vote is processed, it cannot be traced back to the person who cast it.

Carter is to rule on the government’s renewed request for a preliminary injunction, which would bar the state from counting the ballots until the litigation is resolved. He said he will do so after a Nov. 13 evidentiary hearing with input from the special master.

He said that if the federal government suspected noncitizens were voting, it could continue to prosecute those cases criminally. Federal authorities have charged over two dozen foreign nationals in California as part of a statewide sweep targeting people officials allege have illegally registered or voted in U.S. elections.

Appeals panel judges have said they wouldn’t support setting aside ballots this close to midterms

The appeal will be the second time that the 9th Circuit Court of Appeals will consider the case.

The first time was just last week when the Justice Department argued before an appeals court panel that a fast ruling on its request was needed to stop any counting of the ballots.

Although the panel ruled it was premature for an appeals court to get involved before a lower-court ruling, two of the three judges wrote separate concurrences making it clear they wouldn’t support setting aside ballots at this late date. They questioned the accuracy of the federal government’s list of alleged noncitizen voters and argued that to set aside votes risks disenfranchising citizens.

One judge dissented, arguing that federal law bars noncitizens from voting and requires California to vet the potentially illegal ballots before counting them. The failure to do so, he wrote, would cause irreparable harm to the election.