In El Koussa v. Attorney General, the Supreme Judicial Court of Massachusetts held that the attorney general could not place two petitions on the 2022 state-wide ballot because they violated the state constitution’s rule that petitions contain only subjects that are “related” or “mutually dependent.”[1]

The case concerned two nearly identical ballot petitions, 21-11 and 21-12, that would “define and regulate the contract-based relationship” between rideshare and app-based delivery companies and their drivers.[2] The two petitions would:

  1. Classify drivers as independent contractors with respect to their relationship with the company (first classification provision);
  2. Specify a minimum compensation for drivers;
  3. Require the companies to provide drivers with various benefits;[3]
  4. Protect drivers from discrimination;
  5. Classify drivers as independent contractors with respect to all other state laws (second classification provision);
  6. Provide that “any party seeking to establish that a person is not an app-based driver bears the burden of proof” (burden of proof provision). 

The issue was whether the last two requirements were related to or mutually dependent on the four preceding requirements. In a unanimous opinion by Justice Scott Kafker, the court held that they were not.[4]

The court had previously interpreted Article 48 of the state constitution, which establishes the “related” or “mutually dependent” requirement, as requiring that all parts of a petition “have a common purpose to which each element is germane.”[5]  When deciding whether parts of a petition have a common purpose, the court considers two factors. First, “whether the similarities of an initiative’s provisions dominate what each segment provides separately so that the petition is sufficiently coherent to be voted on ‘yes’ or ‘no’ by the voters.[6] And second, “whether the initiative petition ‘express[es] an operational relatedness among its substantive parts that would permit a reasonable voter to affirm or reject the entire petition as a unified statement of public policy.”[7] The “crux” of these inquiries is whether a petition’s parts create a “coherent or unified policy proposal.”[8]

The petitioners argued that the first four provisions are separate policy proposals from the second classification provision and the burden of proof provision.[9] They argued that the former provisions establish a scheme that regulates the relationship between drivers and companies, but that the latter provisions narrow the tort liability of companies to third parties injured by drivers.[10] Their opponents argued that the latter two provisions merely “require courts to interpret all the provisions within the petitions consistently with the petitions’ definition of app-based drivers as independent contractors.”[11]

The court agreed with the petitioners.[12] In its view, the two provisions were vague.[13] Nevertheless, when read together, it was clear to the court that their purpose was to “extend to third-party tort suits the classification of app-based drivers as independent contractors.”[14] Accordingly, it concluded that these two provisions “go well beyond the contract-based relationship between network companies and app-based drivers, and the compensation and benefits associated therewith.”[15]  Because those provisions were not related to the other provisions, the petitions violated Article 48 and could not be placed on the ballot.[16]

To hold otherwise, the court concluded, would be “encouraging or at least condoning efforts to mislead and confuse voters by concealing controversial provisions in obscure language.”[17]

The effect of the decision will be to force proponents of these policies to scrap these petitions and advance new ones that advance their two policy goals separately.

[1] El Koussa v. Att’y Gen., 188 N.E.3d 510 (2022) (quoting MA Const. 48, Init., Pt. 2, § 3).

[2] Id. at 513 (quoting the initiatives).

[3] One of the initiatives also included a requirement that the companies mandate driver safety training and pay drivers for completing it.

[4] Because the court decided the case on these grounds, it did not reach the question of whether the Attorney General’s summaries of these provisions were “fair.”

[5] El Koussa, 188 N.E.3d at 515 (internal quotations and citations omitted).

[6] Id.

[7] Id.

[8] Id. at 515–16.

[9] Id. at 516–18.

[10] Id. at 517–18.

[11] Id. at 518.

[12] Id. at 519.

[13] Id.

[14] Id.

[15] Id. at 520.

[16] Id. at 523.

[17] Id. at 520.

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