The Single-Subject Rule and the Politics of Constitutional Amendment in Initiative States
55 Pages Posted: 31 Oct 2022 Last revised: 5 Sep 2023
Date Written: October 20, 2022
Abstract
The constitutional initiative is increasingly powerful in American politics. In recent years, voters have considered hundreds of initiatives addressing a wide range of issues, including abortion, marriage equality, taxation, environmental policy, marijuana regulation, education, religious freedom, affirmative action, guns rights, and many others. Initiative campaigns also attract a lot of money. In 2020 alone, statewide campaigns reported $1.24 billion in contributions.
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 “single-subject” rule is an especially common device. By limiting ballot questions to a discrete issue, the rule aims to enhance the legitimacy and quality of the initiative by protecting against voter confusion and special interest logrolling and riding.
But the rule is being turned on its head. In this Article, I argue that in today’s political environment, the single-subject rule is at risk of undermining rather than enhancing the initiative. Instead of helping to align government policy with statewide popular majorities, the rule is increasingly applied to shield recalcitrant legislatures and governors. This happens when initiative sponsors anticipate that state government will deploy a variety of tactics to evade a successful initiative. Initiative sponsors then expand the initiative’s scope and detail to foreclose expected countermeasures. In those cases (which are increasingly common), the single-subject rule can have perverse effects because each new addition makes the initiative more likely to violate the single-subject rule to the benefit of misaligned state government.
This Article identifies five different initiative countermeasures that misaligned governors and legislatures increasingly deploy to evade popular initiatives. It also shows how contemporary initiatives have expanded in scope and detail to address those countermeasures and how the single-subject rule is being used to reify misaligned state government. Finally, this Article concludes that traditional structural reasoning supports judicial application of the single-subject rule with greater sensitivity to the initiative’s underlying purpose as an accountability device.
Keywords: constitutional law, local government law, state constitutional law, inititiave, referenda, direct democracy
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