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Column: Courts finally move to end right-wing judge shopping, but the damage may already be done

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Column: Courts finally move to end right-wing judge shopping, but the damage may already be done

Some lawsuits are won by smart lawyers and some on the facts. But nothing spells success as much as the ability to pick your own judge.

That’s the lesson taught by conservative activists who have moved in federal courts to overturn government programs and policies on abortion, contraception, immigration, gun control, student loan relief and vaccine mandates, among other issues.

In recent years they’ve gamed the judicial system to get their lawsuits heard by judges they knew would be sure to see things their way. The process is known as judge shopping, and the committee that makes policy for the federal courts just moved to put an end to it.

The courts have now formally recognized the need to do something about a really troubling pattern of judge shopping.

— Amanda Shanor, University of Pennsylvania constitutional law expert

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In a policy statement and official guidance issued last week, the Judicial Conference of the United States said that henceforth, any lawsuit seeking a statewide or nationwide injunction against a government policy or action should be assigned at random to a judge in the federal district where it’s filed.

If that sounds a bit vague to the layperson, its target is crystal clear to legal experts: It’s aimed at right-wing activists and politicians who have filed their cases in federal courthouses presided over by highly partisan judges in Texas. Most of those judges were appointed by Donald Trump.

It would be bad enough if those judges’ rulings applied only within their judicial districts or affected only the plaintiffs. But the judges have issued sweeping nationwide injunctions that block government programs and policies coast-to-coast.

As Ian Millhiser of Vox put it, this is America’s “Matthew Kacsmaryk problem.” Kacsmaryk is the Trump-appointed Texas federal judge who most recently attempted to outlaw mifepristone, a widely used abortion medication, nationwide. His April 2023 ruling has been temporarily stayed by the Supreme Court, but it’s still on the docket, ticking away.

But Kacsmaryk is not alone. As recently as March 8, Judge J. Campbell Barker, a Trump appointee who presides over 50% of the civil cases filed in his rustic courthouse in Tyler, Texas, invalidated a ruling by the National Labor Relations Board broadening the standard by which big corporations could be held jointly responsible for the welfare and unionization rights of workers employed by their franchisees.

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How serious a blow could the judicial conference’s policy be to conservatives aiming to roll back civil rights? Massive, judging from the reaction of Senate Minority Leader Mitch McConnell (R-Ky.). Only 48 hours after the conference announced its initiative, McConnell wrote to the chief judges of all judicial districts urging them to ignore the new policy.

This was an audacious move, considering that the presiding officer of the Judicial Council is Chief Justice John G. Roberts Jr., its membership comprises the chief judges of the 12 judicial circuits and one judge from a district court in each circuit, and its role is to set policy for the entire federal court system.

McConnell asserted that only Congress can make the rules for the assignment of federal trial judges, but that’s dubious. In an analysis last year, the Justice Department concluded that the Supreme Court has full authority to impose rules of civil procedure in the federal courts, including a rule mandating that all federal judicial districts assign judges randomly to civil lawsuits aimed at statewide or nationwide injunctions. The Judicial Council’s policy isn’t the same as as a Supreme Court rule, but it’s a fair bet that if pushed, the court would issue the rule.

McConnell also asserted that the Judicial Conference had been pressured into acting by Senate Majority Leader Charles E. Schumer (D-N.Y.), but that’s untrue. Although Schumer has spoken out against judge shopping, numerous legal experts and Roberts himself have expressed concerns about the practice.

“The courts have now formally recognized the need to do something about a really troubling pattern of judge shopping,” Amanda Shanor, a constitutional law expert at the University of Pennsylvania, said of the Judicial Conference’s initiative.

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What’s yet unclear is whether the conference’s initiative goes far enough. Its policy statement is described as “guidance,” not a mandate. it acknowledges the district courts’ “authority and discretion” to manage their dockets as they see fit.

Last year, Shanor, with Alice Clapman and Jennifer Ahearn of NYU’s Brennan Center for Justice, proposed that the conference require all judicial districts to use a “random or blind procedure” to distribute cases among all the judges in the district when the litigants seek an injunction or other relief that would extend beyond the district’s borders.

The practice traditionally labeled “forum shopping” is not especially new. The earliest case cited by legal experts dates back to 1842, when a litigant chose to file a lawsuit in federal rather than state court in New York to gain a strategic advantage over his adversary.

Plaintiffs have been known to choose a venue based on local statutes of limitation, or a sense that juries in a region might be more amenable to their case, or because their location may be more convenient for parties or witnesses.

More recently, however, the practice has been heavily abused for partisan and ideological purposes. This results from two trends. One is the increasing partisanship of individual federal judges, especially those appointed by Trump. The second is those judges’ habit of issuing nationwide injunctions against government policies or programs.

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Nationwide injunctions can impose parochial partisan ideologies on the whole country. Through 2023, the state of Texas filed more than 31 federal lawsuits challenging Biden administration policies — but not a single one in federal court in Austin, which is the state capital but an island of blue in a red state.

The state had filed seven lawsuits in Amarillo, where by local procedure every one was automatically assigned to Kacsmaryk; six in Victoria, where all civil cases are assigned to Trump appointee Drew B. Tipton; and four in Galveston, where all civil cases come before Trump appointee Jeff Brown.

The rest were filed in divisions with two judges, most of whom are also Trump appointees or conservative appointees of George W. Bush. In the Tyler division from which Barker issued his NLRB decision, all the cases he doesn’t get are assigned to Judge Jeremy Kernodle, also a Trump appointee.

Although some nationwide injunctions have been lifted by the Supreme Court, that process seldom happens speedily. The result is that the plaintiffs effectively win by losing, as injunctions against government policies can have “the lasting systemic effect of blocking these policies for months or years,” Shanor, Clapman and Ahearn observed.

Kacsmaryk got the mifepristone case for two reasons. First, antiabortion activists knew of his strong antiabortion inclinations. Second, the policy in the Northern District of Texas is to assign cases to judges in the division where they’re filed.

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Kacsmaryk is the only judge sitting in the Amarillo division of the Northern District of Texas. So it was an easy call for the mifepristone plaintiffs to file there, knowing that their chance of drawing Kacsmaryk as their judge was 100%.

The same pattern drove plaintiffs to file lawsuits against Biden administration initiatives in the same district’s Fort Worth division, which has two judges, Trump appointee Mark T. Pittman and George W. Bush appointee Reed O’Connor. Both have been sought by conservative litigants. O’Connor also presides over 100% of the cases filed in the district’s Wichita Falls courthouse, where he is the only judge.

Pittman obligingly overturned Biden’s student loan relief program in 2022. Just this month, he ruled the government’s 55-year-old Minority Business Development Agency to be unconstitutional and ordered it opened to contract applicants of all races — obviously a ruling that defeats the purpose of a program designed to help minorities get a start in the business world. O’Connor tried to declare the entire Affordable Care Act unconstitutional in 2018. The Supreme Court overruled him in 2021.

The judicial conference’s initiative is long overdue.

Customarily, rulings by federal trial judges have constituted precedents binding at most on other judges in a particular judicial district or resulted in court orders benefiting only the plaintiffs who filed the case.

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Matters are different “when a court effectively can bind the entire nation with an injunction” that applies to “an unlimited range of persons and to conduct occurring in … an equally unlimited array of places,” legal scholar Ronald A. Cass wrote in 2018.

The prospect of sweeping rulings incentivizes “an extreme race to courthouses more inclined to issue nationwide injunctions and more sympathetic to the plaintiff’s position,” Cass wrote.

In its latest incarnation, “litigants effectively have the ability to effectively choose an actual judge,” Shanor told me.

“We don’t know how the policy will be rolled out, what exactly is in it, or how much of it is a recommendation rather than a requirement,” she says. “A policy may be effective, but having a rule would advance the fairness and randomness of the distribution of these nationally important cases, and ensure the perceived legitimacy of the courts.”

One is that the policy won’t apply to cases that have already been assigned to a judge. Another is that litigants can still try to game the system by filing their lawsuits in states from which appeals are heard by circuit courts known to have a particular partisan lean.

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That’s a major issue with Texas cases, which are funneled on appeal to the 5th Circuit, sitting in New Orleans. That court has been the source of right-wing decisions so loopy that they’ve been slapped down by the conservative majority on the Supreme Court. Of that circuit’s 17 active judges, six are Trump appointees.

McConnell’s objection to the Judicial Conference’s policy thus should be seen in context. He had more to do than anyone else with embedding Trumpian judges in the federal judiciary, where they wreak havoc on government policies and programs that help ordinary Americans, not just corporations and the rich. The conference’s initiative may be the first step toward a more fair-minded judiciary, but it’s a crucial one.

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TikTok creators sue U.S. government in a bid to stop potential ban

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TikTok creators sue U.S. government in a bid to stop potential ban

Eight TikTok creators sued the U.S. government on Tuesday, alleging their rights to free speech are being violated by a new federal law that would ban the social video app if its Chinese owner doesn’t sell it.

U.S. politicians have raised security concerns about the app, saying that TikTok’s ties to its Chinese parent company, ByteDance, could allow a foreign country to collect American users’ data and influence public opinion.

A law signed by President Biden last month would require ByteDance to sell TikTok’s U.S. operations by Jan. 19 in order for TikTok to continue to be made available in the U.S.

The TikTok video creators, in their lawsuit filed in the U.S. Court of Appeals for the District of Columbia Circuit, said they use the app to upload content that helps them connect with different communities, exchange ideas and boost their businesses.

“The Act’s ban of TikTok threatens to deprive them, and the rest of the country, of this distinctive means of expression and communication,” the creators said in their petition. The complaint was first reported by the Washington Post.

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The creators are asking for the court to declare the new law invalid and to stop it from being enforced.

The U.S. Department of Justice said it looks forward to defending the law, which has received bipartisan support.

“This legislation addresses critical national security concerns in a manner that is consistent with the First Amendment and other constitutional limitations,” the department said in a statement.

Opponents of the ban, or forced divestiture, say TikTok’s critics have offered scant evidence that the Chinese government is using the app to spy on U.S. citizens.

The creators’ lawsuit comes a week after TikTok and ByteDance sued the U.S. government on similar 1st Amendment grounds.

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The companies said the law would require them to sever ByteDance’s control over TikTok’s popular algorithm, which would significantly alter the way the app functions. The algorithm allows TikTok to offer customized recommendations based on users’ viewing behavior, reaching an audience of more than 1 billion users globally.

TikTok and ByteDance said the new law “offers no support for the idea” that TikTok’s Chinese ownership poses national security risks.

The TikTok creators involved in Tuesday’s lawsuit are Texas rancher Brian Firebaugh; Memphis, Tenn., baker Chloe Joy Sexton; Maryland-based book reviewer Talia Cadet; North Dakota college football coach Timothy Martin; recent college graduate Kiera Spann in North Carolina; Paul Tran, co-founder of Atlanta-based skincare business Love & Pebble; Mississippi-based hip-hop artist Christopher Townsend; and Arizona-based Steven King, whose content centers on LGBTQ+ pride.

TikTok is providing funding for the lawsuit.

“We are supporting our creators who did not otherwise have the means to bring a lawsuit to protect their First Amendment rights,” TikTok said in a statement.

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Some of the creators said they depend on TikTok for their livelihoods.

For example, Firebaugh sells ranch products on TikTok and receives money through TikTok’s creator rewards program. If the app were to be banned, he’d have to get a different job and pay for day care, the lawsuit said.

“In his words, ‘if you ban TikTok, you ban my way of life,’” the lawsuit said.

If ByteDance decides to sell TikTok’s U.S. operations, there are already interested buyers.

On Wednesday, former Dodgers owner Frank McCourt said he is organizing a bid under his Project Liberty initiative to buy TikTok. Former Treasury Secretary Steven T. Mnuchin, who heads Liberty Strategic Capital, in March said he is assembling an investor group to bid.

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Tech companies such as Microsoft and Oracle could be bidders as well, analysts have said.

Times news researcher Scott Wilson contributed to this report.

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Column: Inside the effort by two Beverly Hills billionaires to kill a state law protecting farmworkers

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Column: Inside the effort by two Beverly Hills billionaires to kill a state law protecting farmworkers

Los Angeles-based Wonderful Co. — the world’s largest pistachio and almond grower, the purveyor of Fiji Water, Pom pomegranate juice and Justin wines, and owner of the Teleflora flower service — wants you to know that it’s committed to “sustainable farming and business practices” and sees its employees as “a guiding force for good.”

Wonderful’s owners, the Beverly Hills billionaires Lynda and Stewart Resnick, say their “calling” is “to leave people and the planet better than we found them.”

Here’s another side of the company. Since February, it has been engaged in a ferocious battle with the United Farm Workers over the UFW’s campaign to unionize more than 600 Wonderful Nurseries workers in the Central Valley.

‘We ask each of you firmly not to sign an authorization card.’

— Anti-union script read to Wonderful Nursery workers by company officials

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Having lost a series of motions before the California Agricultural Labor Relations Board to delay a mandate that it reach a contract with the UFW as soon as June 3 or have terms imposed by the board, Wonderful on Monday unleashed a nuclear attack: a lawsuit seeking to have the 2022 and 2023 state laws governing the unionization process declared unconstitutional.

If it succeeds, California’s legal protections for farmworkers could be rolled back to conditions that prevailed before César Chavez’s campaigns for farm unionization in the 1960s.

“This is an attack on farmworkers’ rights,” says Elizabeth Strater, the UFW’s director of strategic campaigns. Farm employers “will do everything they can to prevent workers from empowering themselves and lifting themselves out of poverty.”

The company disputes the claim and says its relationship with agricultural workers “is rooted in mutual trust, collaboration and respect,” in the words of Wonderful Nurseries President Rob Yraceburu.

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Wonderful’s lawsuit takes a page from arguments made against the National Labor Relations Board by Trader Joe’s and Elon Musk’s SpaceX. Both companies, facing NLRB regulatory actions, are contending that the NLRB, which Congress established in 1935, is unconstitutional.

Wonderful contends that provisions of the state’s agricultural labor code violate its rights of due process guaranteed by both the state and U.S. constitutions.

At issue is a UFW drive to represent more than 600 Wonderful Nurseries employees that began in early 2023. The UFW ultimately presented the labor board with signed cards from more than half the employees giving the UFW authority to represent them in collective bargaining on a contract, a process known as a “card check.”

The board certified the union as the workers’ representative on March 1, triggering a tight deadline aimed at prompting the union and the company to reach a contract.

As often happens in hard-fought union campaigns, this one has generated a cross fire of allegations of unfair labor practices from both sides — the company asserting that the union defrauded workers into signing the representation cards, the union asserting that the company browbeat more than 100 workers into revoking their authorizations to drive the approval rate below the required 50%.

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Accounts from the workers themselves vary. As my colleagues Rebecca Plevin and Melissa Gomez have reported, there have been complaints about poor working conditions at Wonderful along with hope that a union would help upgrade standards. Other workers say they misunderstood that signing an authorization card was tantamount to joining the UFW.

Some workers said they had second thoughts about signing the cards after meetings with a company-hired union-buster, Raul Calvo, who told them the union would take 3% of their pay for dues. In late March, some 100 Wonderful workers staged an anti-union protest at the ALRB offices in Visalia, but the UFW has alleged that the rally was the product of company coercion. Wonderful said at the time that it had no involvement in the protest and didn’t pay the workers for their time.

“These workers are so vulnerable,” the UFW’s Strater says. Many are undocumented or have other reasons to worry about job security, arguably making them receptive to management directives.

In this case, another party has weighed in — the Agricultural Labor Relations Board, an independent state agency. After an investigation, the board’s general counsel, Julia Montgomery, alleged that Wonderful trampled its workers’ unionization rights through numerous anti-union actions, including coercing them to submit declarations rescinding their authorizations. Wonderful has denied most of the allegations.

Wonderful says that the workers submitted their declarations — nearly 150 of them — voluntarily, “without any request having been made” by the company. Montgomery’s allegations, however, are mighty specific. She cites a series of meetings that were overtly aimed at persuading the workers to back away from the union.

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That process began with employee meetings addressed by Calvo and proceeded to sessions in which workers met with Wonderful human resources personnel, Montgomery alleged. At those meetings, the company representatives read from a Spanish-language script stating that the union could have obtained workers’ signatures without their knowledge, that they would be deprived of the opportunity for a secret vote on unionization and encouraging them to sign a declaration revoking their authorization cards.

“We ask each of you firmly not to sign an authorization card,” the script read. In a line that sounds as if it came fresh out of the playbook of anti-union companies such as Starbucks, the script stated that the company wants “to be able to work one on one with you without the interference of a union.”

Some workers were led into a large conference room, where company representatives were assigned “to help the worker draft the declaration” revoking the authorization cards, Montgomery asserted. Some agents typed up declarations for the workers and handed them to the workers to sign.

A few words about the plaintiffs in this lawsuit:

The Resnicks are prominent philanthropists and political donors (mostly to Democrats). Their companies’ effects on the environment and California agriculture generally are checkered. Indeed, their most eye-catching charitable donation, a record-breaking $750-million pledge to Caltech in 2019 for research into climate change and “environmental sustainability,” isn’t inconsistent with a desire to “greenwash” some of their other activities.

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As I previously wrote, while it might be churlish to suggest that the gift was devoid of genuine altruistic impulses, it would be naive to assume that altruism is the whole story.

A few years earlier, the Resnicks’ Justin Vineyards had been caught clear-cutting an oak forest near Paso Robles to make room for new grape plantings. The work was halted by San Luis Obispo County authorities, and the firm eventually agreed to donate the 380-acre parcel to a land conservancy.

Although the Resnicks say they are “dedicated to our role as environmental stewards,” their Fiji Water subsidiary looks like the antithesis of environmental sustainability. It profits from transporting water in plastic bottles more than 5,500 miles from the island nation to California and beyond, places that already have abundant water.

Wonderful’s pistachio and almond orchards have complicated efforts to apportion water among the state’s competing stakeholders. Because the trees require watering in wet years or dry, their acreage can’t be fallowed during dry spells.

That has made the water demand of the agricultural sector less flexible, and arguably has contributed to the devastating decline of the state’s salmon fishery and the drying out of rivers and streams that once supported a diverse population of fish and birds.

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This isn’t the first time that the Resnicks have wrapped themselves in the U.S. Constitution to fend off a regulatory agency. In 2010, they asserted that the Federal Trade Commission infringed their 1st Amendment rights by holding that they made “false and misleading” and “unsubstantiated” representations about the health benefits of their Pom pomegranate juice, which amounted to unlawful marketing.

The company pitched the juice as “health in a bottle.” Wonderful put up billboards with the words “Cheat Death” next to a picture of the bottle. Its ads claimed Pom has beneficial effects on prostate cancer (“Drink to prostate health”), cardiovascular health and even erectile dysfunction — all of which claims were judged scientifically dubious by regulators. The company fought the FTC up to the U.S. Supreme Court, which rejected its appeal.

The 2022 and 2023 laws that Wonderful is challenging — indeed, the very creation of the ALRB in 1975 — reflect a reality known in California for more than a century: Bringing labor rights to farmworkers is notoriously difficult.

The first major farm union organizing drive in the state, among hops pickers in Wheatland, north of Sacramento, was broken up by four companies of the National Guard called out by Gov. Hiram Johnson in 1913. A statewide dragnet for organizers from the Industrial Workers of the World, or Wobblies, ensued, followed by hundreds of arrests. No further significant farm organizing took place for 16 years.

In 1975, a state law passed at the urging of César Chavez’s UFW gave union organizers the right to meet with workers on the farms where they toiled. But the Supreme Court, voting on partisan lines, struck it down in 2021—the law allowed organizers to “invade the growers’ property,” as Chief Justice John G. Roberts Jr. wrote.

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To address the heightened difficulty agricultural unions faced, the state Legislature established the card check process in 2022 and 2023. The laws incorporated a tight timeline governing certification and contract bargaining, and stipulated mandatory mediation if no contract is reached with a set period.

The goal was to address “the basic failing of labor law both at the federal and state level, which is delay,” said William B. Gould IV, professor emeritus of law at Stanford and a former chairman of the National Labor Relations Board and the state Agricultural Labor Relations Board.

“Delay works against the interests of workers and unions, because employers hope that they’ll grow weary,” Gould told me. The tight deadlines were designed to place the burden of delay on the employers.

Wonderful maintains in its lawsuit, filed in Kern County state court, that the accelerated process has deprived employers of constitutionally protected due process rights by allowing a union to be certified by card check before the employers have a chance to object — effectively rendering the certification and the negotiating deadline faits accomplis.

That’s not quite true, however. The law allows anyone to file objections within five days of certification. After that, any certification can be revoked if the employers’ objections are later upheld at a hearing, and any mandated contract can be invalidated. Indeed, Wonderful filed its objections in time, citing the workers’ declarations; an ALRB hearing on its objections has been underway for weeks.

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What appears especially to irk Wonderful is that the board has twice rejected its motions to suspend, or stay, the certification and negotiation procedure until after it rules on the company’s objections. The board responded that the law doesn’t provide for such a stay.

The company’s lawsuit thus amounts to an end run around the law. Gould is skeptical that Wonderful’s constitutionality claims will win much favor from California judges, but the case may be aimed at the notoriously anti-union U.S. Supreme Court majority.

“This Supreme Court has indicated that they want to reverse much of what was done in the 1930s,” a high-water mark for progressive labor and public interest laws, he said. In its lawsuit, Wonderful “has thrown buckets of paint against the wall in the hope that something will stick. Maybe they’ll be right on some of it.”

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Disneyland costumed character employees vote to unionize

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Disneyland costumed character employees vote to unionize

Disneyland Resort employees who portray costumed characters such as Mickey Mouse or Cinderella have voted to unionize under the Actors’ Equity Assn.

The unit, which consists of 1,700 people, voted 953 in favor of unionization and 258 against, Actors’ Equity said Saturday night on the social media platform X. Of the votes tallied, 79% were pro-union.

The results of the vote, overseen by the National Labor Relations Board, come after a three-day election period in which employees, known as “cast members” in Disney parlance, placed their votes at three polling sites in Disneyland. The employees announced their intent to unionize in February.

“This is an incredible victory, and we appreciate all the support over the past several weeks. We’re excited about the next phase,” said Actors’ Equity Assn. President Kate Shindle in a statement. “These cast members are both pro-union and pro-Disney, and they’re looking forward to meeting with their employer across the bargaining table in a good faith effort to make both the work experience and the guest experience better.”

The workers regularly don full-body costumes of well-known animated Disney characters. They also portray so-called lookalike characters, such as the Disney princesses, in which the actors’ faces are exposed while performing. These employees work at meet-and-greets in the parks, perform in parades and are part of dining experiences in the Disneyland Resort hotels.

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“While voting is complete, there are still steps in the process prior to the election being certified, so it is premature for the company to comment on the results,” said Disneyland spokesperson Jessica Good in a statement. “Whatever the outcome, we respect that our cast members had the opportunity to have their voices heard.”

Organizers said prior to the election that a top priority was creating a healthier and safer working environment for these workers, who often endure injury and discomfort due to the physical nature of their jobs.

Employees can get accidentally injured during guest interactions, such as when a child jumps on a costumed character out of excitement, or intentionally hurt. A recent social media trend emerged in which guests distract employees wearing full-body costumes, then try to twist or aggressively move their heads around.

The Disneyland Resort employees in the characters and parades departments now join their counterparts in Walt Disney World in Florida in being part of a union. Most of the rest of the Disneyland Resort workforce, including custodians, ride operators and merchandise clerks, among others, are already unionized.

The organizing effort comes as the Walt Disney Co. plans to invest $60 billion over 10 years into its “experiences” division, which includes the theme parks, resorts, cruise line and merchandise. That division has proved to be a cash cow for the company; last year, it brought in about 70% of Disney’s operating income.

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At Disneyland Resort, that investment will result in what company Chief Executive Bob Iger called the biggest expansion of the parks since the addition of Disney’s California Adventure, which opened in 2001. The plan, known as DisneylandForward, will result in at least $1.9 billion in development and could include new attractions alongside restaurant, retail and hotel space.

The plan calls for changes to the park’s zoning, allowing the company more freedom to mix attractions, theme parks, shopping, dining and parking. While the plan doesn’t specify which attractions will be added to the resort, company officials have floated ideas including immersive “Avatar,” “Frozen” and “Tron” experiences.

Times staff writers Christi Carras and Ryan Faughnder contributed to this report.

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