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 rule. On Thursday we will present our empirical evidence, and on Friday we will conclude by discussing the normative implications of our work.
The Subject of Subjects
At least fourteen states that allow initiated statutes or constitutional amendments provide that the initiated measure presented to the voters shall not contain more than a single subject. A court determining that an initiated measure contains more than one subject will often remove it from the ballot or declare the measure void if it has already been enacted; some courts consider the less drastic step of severing the measure and placing only part of it before voters.
States do not use identical language in setting forth the single subject rule. California’s Constitution, for example, provides that “An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.” Colorado’s in contrast, provides that “No measure shall be proposed by petition containing more than one subject, which shall be clearly expressed in its title. . . ” But each state’s language depends on the meaning of the term “subject.”
The term “subject” is not self-defining, and therefore courts must specify the appropriate standard for counting the number of subjects in an initiative. As Lowenstein pithily put it:
- [S]uppose I am giving a lecture and I announce at the outset that my subject will be the battle of Antietam, the contributions made to health by vitamin C, and Shakespeare’s The Merchant of Venice. You would undoubtedly find it a surprising subject, but you could not say in advance that it is not a subject. . . . [N]o combination of matters can be ruled out in advance as a single subject. Defining a subject is purely and essentially a matter of convenience.
The problem with the infinite malleability of the term subject is not so much that judges will be paralyzed when trying to apply it, but that their political preferences might be used to fill the otherwise entirely subjective gap. It might appear as if judges are striking down initiatives simply because they don’t agree with the laws they are proposing.
A Tale of Two Initiatives
Concern about the meaning of the term “subject” is not an academic one. Indeed, single-subject litigation during the 2006 election season showed the potential for arbitrary outcomes when courts apply a single subject rule. Consider two proposed initiatives and ask yourself if either, or both, violate the single-subject rule:
- Initiative A shifts responsibility for drawing state legislative and congressional districts from the state legislature to a redistricting commission. The commission must draw single-member districts, changing current practice which allows multi-member districts for the state legislature.
Initiative B limits marriage to one man and one woman. It also prevents localities from adopting “civil unions” for non-married couples that would give those in such unions any of the rights of married couples.
In two opinions issued on the same day in March 2006, the Florida Supreme Court struck down Initiative A and upheld Initiative B against single-subject challenges. The court ruled that federal redistricting and state redistricting are separate subjects, and both differ from the use of single-member districts. In contrast, the court held that both parts of Initiative B dealt with the subject of marriage.
It is not hard to imagine other courts reaching different conclusions. Indeed, some have. A California court upheld an election reform measure much more disparate than the Florida redistricting measure against a single-subject challenge. A state court in Georgia struck down a measure very similar to Initiative B on the grounds that same-sex marriage and civil unions are separate subjects (a decision later reversed by the Georgia Supreme Court).
Multiple Single-Subject Tests
As Lowenstein has noted, there are two main approaches to single subject adjudication in California, a liberal or restrained interpretation (under which most single subject challenges to initiatives should be rejected) requiring that the different provisions of the initiative be “reasonably germane” to one another to be upheld, and a more stringent or aggressive interpretation (under which more single subject challenges to initiatives would succeed) requiring that the different provisions of the initiative be “functionally related” to one another. California has opted for the “reasonably germane” test; not surprisingly, historically California’s courts have rejected most single subject challenges. But in 2002, Lowenstein noted newly aggressive enforcement of the rule in many states, including in California.
Each state has developed its own single-subject jurisprudence and linguistic glosses on the rule. Florida, for example, has earned a reputation as a state with aggressive enforcement of the rule, requiring that all parts of an initiative have a zen-like “logical and natural oneness of purpose” in order to steer clear of a single subject violation. The Florida Supreme Court relied on this test in striking down the redistricting initiative described above: “A voter who advocates apportionment by a redistricting commission may not necessarily agree with the change in the standards for drawing the legislative and congressional districts. Conversely, a voter who approves the change in district standards may not want to change from the legislative apportionment process currently in place. Thus, a voter would be forced to vote in the ‘all or nothing’ fashion that the single subject requirement safeguards against.” Because a voter would be required to make this choice, the Florida high court held, the measure did not have a “oneness of purpose,” and it therefore violated the single subject rule.
Regardless of the verbal formulation of the test, and whether or not the test requires aggressive or restrained implementation, courts typically have identified two potential interests served by the single-subject rule: prevention of logrolling and avoiding voter confusion. We turn to those interests tomorrow.