A Theory of Direct Democracy and the Single Subject Rule
Michael D. Gilbert
University of Virginia School of Law
Robert D. Cooter
University of California, Berkeley - School of Law
August 11, 2009
Columbia Law Review, Vol. 110, p. 687, 2010
Virginia Law and Economics Research Paper No. 2010-02
UC Berkeley Public Law Research Paper No. 1448043
Citizens in many states use direct democracy to make laws on everything from soda bottles and horsemeat to affirmative action and same-sex marriage. Does direct democracy save citizens from corrupt legislators, or does it enfeeble competent representatives and empower an ignorant crowd? These ideological extremes often collide in court over a technical rule - the single subject rule - that limits each ballot initiative to one “subject.” Opponents can invalidate an initiative by convincing a court that it contains two different subjects (say, marriage and domestic partnerships), while proponents can preserve it by showing that it contains only one subject (say, same-sex unions).
Despite hundreds of cases, including recent challenges to initiatives on same-sex marriage, illegal immigration, eminent domain, and taxes on oil profits, judges and scholars have been unable to define a “subject” with precision. This has led to inconsistent case outcomes, accusations of judicial activism, calls to repeal the rule, and anxiety among judges who must decide inflammatory issues by applying an undefined concept.
Judges and scholars will never find a legal definition of “subject” by focusing exclusively on logic and language. Instead, the definition must be drawn from political theory. In the legislature, representatives of the citizens can bargain with each other, allowing compromise among groups that disagree politically. In contrast, hundreds of thousands of unorganized voters must accept or reject initiatives as presented to them. Those voters cannot bargain among themselves, but they can override legislative bargains that serve special interests. This political vision exposes the true justification for the single subject rule: to empower the majority on issues where there is one, and to channel bargaining and compromise into the legislature where it belongs.
This “democratic process theory” leads to a precise, operational interpretation of the single subject rule. The interpretation focuses on whether voters can make independent judgments about components of a challenged initiative. When opponents contend that an initiative contains two components in violation of the rule, the court should ask whether voters’ support hinges on whether the other component becomes law – then the voters need to decide simultaneously. To allow them to do so, the court should find that the initiative contains one subject.
According to the democratic process theory, separability of issues in the minds of voters implies an obligation to separate on the ballot, and inseparability in the minds of voters implies permission to combine on the ballot. The democratic process test for a single subject empowers the citizens on issues where there is a clear majority and empowers the legislature on issues that require compromise, just as the rule - and direct democracy itself - were designed to do.
Number of Pages in PDF File: 44
Date posted: August 13, 2009 ; Last revised: November 1, 2012