43 Pages Posted: 8 Feb 2010
Date Written: February 8, 2010
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.
Keywords: initiatives, direct democracy, single subject rule
Suggested Citation: Suggested Citation
Matsusaka, John G. and Hasen, Richard L., Aggressive Enforcement of the Single Subject Rule (February 8, 2010). Loyola-LA Legal Studies Paper No. 2010-4; USC CLEO Research Paper No. C10-3; Marshall School of Business Working Paper No. FBE 28-10. Available at SSRN: https://ssrn.com/abstract=1549824 or http://dx.doi.org/10.2139/ssrn.1549824