Rick Hasen & John Matsusaka, Guest-Blogging

I’m delighted to say that Prof. Rick Hasen (UC Irvine) and Prof. John Matsusaka will be guest-blogging this week on their new article, Aggressive Enforcement of the Single Subject Rule. I know Rick well (from when he and I were students together in Dan Lowenstein’s Law and the Political Process class), and I know that he is one of the top scholars in the field of election law, so I always keep an eye out for his new articles; and when I saw this one, I thought that our readers would be very interested in seeing it. (Prof. Matsusaka is also a leading scholar in the field of direct democracy, though I don’t know his work as well as I do Rick’s.) Here is the abstract:

Most states require voter initiatives to embrace only a single subject, and courts have invalidated many initiatives for violating the single subject rule. Critics argue that the definition of a “subject” is infinitely malleable, and therefore, if judges attempt to enforce the single-subject rule aggressively, their decisions will be based on their personal views rather than neutral principles.

We investigate this argument by studying the decisions of state appellate court judges in five states during the period 1997-2006. We find that judges are more likely to uphold an initiative against a single subject challenge if their partisan affiliations suggest they would be sympathetic to the policy proposed by the initiative.

More important, we find that partisan affiliation is extremely important in states with aggressive enforcement of the single subject rule — the rate of upholding an initiative jumps from 42 percent to 83 percent when a judge agrees with the policy than when he disagrees — but not very important in states with restrained enforcement. The evidence suggests that it may be possible to apply the single subject rule in a neutral way if enforcement is approached with a deferential perspective, but with aggressive enforcement decisions are likely to driven by the political preferences of judges.