Eighteen states allow citizens to independently propose constitutional amendments through the initiative process.1 In many of those states, the constitutional initiative is a powerful force in state constitutional politics.2 Indeed, since 2000, voters have considered hundreds of initiative amendments addressing a wide range of issues, including marriage equality, taxation, environmental policy, marijuana, infrastructure, education, agriculture, religious freedom, reproductive rights, affirmative action, immigration, redistricting, and many others.3 Initiative campaigns also attract a lot of money. In 2020, statewide campaigns reported $1.24 billion in contributions and $1.22 billion in spending.4 It should be unsurprising, therefore, that regulating the initiative is both important and contentious. States have developed a variety of different regulatory requirements and mechanisms, but the “singlesubject” rule is an especially common device.5 As its name suggests, the rule provides that initiatives must be limited to “one subject.”6 By limiting ballot questions to a discrete issue, the rule aims to ensure that proposals present voters with a clear and singular policy choice.7 This in turn helps to improve transparency and enhance the legitimacy of referenda results by limiting special interest logrolling and riding.8 Despite these laudable objectives, the single-subject rule is widely criticized. Critiques vary, but the dominant concern is that the rule is near impossible to apply because the term “subject” is too vague and indefinite.9 A related concern is that the rule’s indeterminacy gives judges too much discretion and power as ballot gatekeepers.10 These concerns have been well substantiated. Leading political scientists have shown, for example, that when judges work to aggressively apply the single-subject rule, the results mostly reflect their personal policy preferences,11 and legal scholars have long concluded that rule is too indeterminate for judicial application.12 In this Article, I argue that although these enforcement critiques are serious and important, there is a deeper problem with the singlesubject rule that is of growing significance. My core claim is that in today’s political environment, the single-subject rule is at risk of undermining rather than enhancing the initiative. Instead of protecting voters and improving transparency, the single-subject rule has the potential to shield recalcitrant legislatures and governors and undermine consolidated statewide majorities.
Jonathan L. Marshfield,
The Single-Subject Rule and the Politics of Constitutional Amendment in Initiative States,
101 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol101/iss1/5