Archive | Election Law

The Weak Theoretical Justifications for the Single Subject Rule

In yesterday’s post, we explained the basics of the “single subject” rule: initiatives may contain only one “subject” or they are unenforceable. The rule leads to controversy because the concept of a “subject” is not self-defining and state courts have developed different single subject tests.

Regardless of terminology, most courts seek to justify their rules based upon only two reasons: preventing logrolling and minimizing voter confusion. In this post, we explain why both of these justifications are weak.

Logrolling

Without a single subject rule, a person could propose an initiative marrying two completely separate questions, such as a tax break and gun control. The concern of courts is that forcing voters to vote on this package will subvert the majority’s will. The single subject rule, if it treats tax breaks and gun control as separate subjects, would prevent such logrolling.

We do not disagree that preventing the packaging of certain initiated legislation prevents logrolling, but we are far less sure that logrolling is necessarily a social ill. In our article we provide a game theoretic explanation for why this is so. Here, we explain the intuition behind our explanation, and direct readers to the paper if they want more precision and detail. [...]

Continue Reading 18

Federal District Court May Reconsider Decision Holding Federal Corporate Contribution Ban Unconstitutional

Eugene blogged last week about United States v. Danielzyck, a criminal case in which a federal court held the law barring direct corporate contributions to candidates to be unconstitutional.

Today, the court on its own motion asked for briefing on whether it should reverse its own ruling in light of direct Supreme Court authority on point. I explore the court’s order in a post on the Election Law Blog. More from the Wall Street Journal‘s Washington Wire. [...]

Continue Reading 10

Introducing the Single Subject Rule for Initiatives

Many thanks to Eugene for giving us the opportunity to blog about our article, Aggressive Enforcement of the Single Subject Rule (pdf) which appeared recently in the Election Law Journal‘s special symposium issue honoring the scholarship of election law pioneer, Dan Lowenstein.

The single subject rule — a requirement that initiatives embrace only one subject — is a favorite tool for groups seeking to strike an initiative from the ballot. And it is frequently criticized by initiative proponents as giving judges a license to strike down initiatives for potentially arbitrary reasons. Our paper explores the theoretical rationale for the single subject rule, and more important, provides evidence showing that court rulings in certain single subject cases closely conform to the policy leanings of the judges that hear the cases.  For example, a judge’s views on the merits of gay marriage may play into whether to strike down an initiative on single subject grounds that bars both gay marriage and civil unions.

Our paper investigates the connection between the rule and judges’ policy preferences by studying the decisions of state appellate court judges in five states (California, Colorado, Florida, Oregon, and Washington) during the period 1997–2006. Courts used the rule to strike down or remove initiatives from voter consideration in at least 70 cases during the period 1997–2006 in those five initiative states. Our main finding is that decisions in single subject cases are heavily influenced by a judge’s partisan inclinations, but that the amount of partisan influence depends on whether the state’s judicial doctrine directs judges to apply the single-subject rule aggressively or with restraint.

In our post today we will focus on the history of the single subject rule and how courts say they are implementing it. Tomorrow we will examine theoretical problems with the [...]

Continue Reading 22

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

[...]
Continue Reading 8