Measure 2's Single-Subject Rule Is A "Back-Door Veto"
By creating an undefined rule for the Secretary of State to enforce, Measure 2 unintentionally creates a "back-door veto" on the will of the people based on the abuses in other states.
On Sunday, I wrote about how Measure 2 is yet another attempt to remedy the mistrust legislators have when it comes the way their own voters decide how to vote on ballot measures.
I had a couple people respond asking why I thought the “single-subject rule” in Measure 2 is a problem, since I have advocated for that sort of transparency in legislation in the past, which I have.
Here’s a short explanation as to why the “single-subject rule” as found in Measure 2 is different than other versions, and why it is problematic.
Measure 2 Grants Undefined And Open-Ended Power To The Secretary of State
Section 2 of Measure 2 states: “An initiated measure may not embrace or be comprised of more than one subject, as determined by the secretary of state.”
That is repeated in Section 9 to apply to constitutional initiated measures in a slightly different way: “The petition may be circulated only by qualified electors. The proposed amendment may not embrace or be comprised of more than one subject, as determined by the secretary of state, and the secretary of state may not approve the initiative petition for circulation if the proposed amendment comprises more than one subject.”
Neither of these clauses actually define what a “subject” is, which is perpetual argument among lawyers involved in legislation.
In fact, the definition of “single-subject” was the basis of lawsuit that forced the legislature to go into special session to remedy the problems in the OMB budget.
This court case was exactly about how the legislature has not been able to follow their own mandate to maintain a single subject in each piece of legislation that they pass.
Back to Measure 2, the legislature decided not to define what this means directly, which leaves it up to the Secretary of State when approving petitions for circulation and leaves it up to the Supreme Court to define once the people have voted.
This lack of defining “single-subject” is why the North Dakota Watchdog Network will oppose Measure 2 in 2024, and why voters should vote NO on a measure that does not actually state or explain what it will and not will not prevent voters from voting on.
States With Single Subject Rules Have A History Of Abusing It, Against The Will Of The People
In 2020, South Dakota voters approved legalizing marijuana with 54% Yes vote.
Governor Kristi Noem sued to have the will of the people overturned via South Dakota’s “single subject rule” on ballot measures:
The South Dakota Supreme Court on Wednesday upheld a lower court's ruling that nullified a voter-passed amendment to the state constitution that would have legalized recreational marijuana use.
Gov. Kristi Noem instigated the legal fight to strike down the amendment passed by voters in November. Though the Republican governor opposed marijuana legalization as a social ill, her administration's arguments in court centered on technical violations to the state constitution.
The high court sided with those arguments in a 4-1 decision, ruling that the measure — Amendment A — would have violated the state's requirement that constitutional amendments deal with just one subject.
"It is clear that Amendment A contains provisions embracing at least three separate subjects, each with distinct objects or purposes," Chief Justice Steven Jensen wrote in the majority opinion, which found recreational marijuana, medical marijuana and hemp each to be separate issues.
Would a normal person say that “recreational marijuana, medical marijuana, and hemp” to be three separate subjects? Probably not, but the lawyers and judges sure did.
These three issues are certainly under the same “topic” but “topic” and “subject” are different in the realm of lawyers.
This is just the most recent and geographically close case where “single-subject rule” was used to veto the will of the people after the people have voted in favor of something.
Legal Research Supports These Arguments
According to a legal white paper written at the University of Southern California School of Law written in 2010, the aggressive enforcement of “single-subject rules” has been a tool to veto the will of the people and prevent the people from even being able to vote on certain things.
The single subject rule, on the books in at least 14 states, requires that initiatives embrace only one subject. This paper studies the decisions of state judges in cases in which opponents of voter initiatives raised single subject claims. Courts used the rule to strike down or remove initiatives from voter consideration in at least 70 cases during the period 1997–2006 in five initiative states applying the rule.
The single subject rule is controversial in part because the definition of a “single subject” is unclear and, as Daniel Lowenstein has argued, it is infinitely malleable in theory. As a result, courts have a great deal of discretion in single subject cases, unless the judges themselves put meaningful restraints on their interpretation of the rule. Because of the discretion inherent in deciding single subject challenges, critics have argued that the rule cannot be enforced in an objective manner and should not be used (Hasen, 2006; Campbell, 2001: 163), or, as Lowenstein (1983, 2002) argues, should be used only in a restrained manner. Defenders have responded that the rule is amenable to objective application and that in practice judges have not allowed their personal beliefs to influence their decisions.
Again, this paper is from 2010 lacks recent history, but in the 44-page document, it illustrates the problem with the enforcement and selective enforcement of the “single-subject rule”
Because “subjects” are chosen for convenience, notions of what forms a coherent subject in politics and legislation will depend in part on ideologies and “worldviews.” When judges apply the single subject rule aggressively, even if they seek to do so in accord with their sense of what the public understanding is, they will inevitably be exercising their own judgments in the most general way about what makes good political or policy sense. That is not to say that their single subject rule judgments will necessarily turn on whether they personally favor the proposals before them. But their judgments will necessarily reflect the way they have chosen to subjectively organize the world. (Lowenstein 2002: 47–48)
Single Subject Requires A Single Standard
The legislature should consider taking up the task of defining “single-subject” for itself and for citizens so that there is not an issue going forward. That would require drafting a new constitutional amendment defining “single-subject” and placing that in front of voters.
If the legislature cannot find a way to define “single-subject” in a way that is workable for itself, then it certainly should not be holding The People to a standard it cannot reach on its own.
And if that is the case - the legislature should consider rescinding SCR 4013 (2024 Measure 2) until it can define the law in a way that the legislature can live up to that is fair to The People.
Afterall, in a government by the people, for the people, and of the people, why should The People be held to a higher standard than the legislature itself when it comes to defining the framework of government?
Considering that the legislature could not abide by its own single-subject rule (the 2023 OMB budget was just the first time they got caught), it should not be demanding that citizens follow such a rule without defining what that rule is.
Too Much Power In One Officials’ Hands
Beyond the lack of defining what a “single-subject” is, and the fact that the legislature cannot meet the standard, the other issue is the concept of putting all the power in the Secretary of States’ hands.
In other areas of Article III, the language directs the Secretary of State to consult with the Attorney General on these issues. But in the provisions of Measure 2, it cuts the Attorney General out of the process, and gives the Secretary of State sole discretion.
Why?
One answer is that by removing the legal analysis, the Secretary of State can make his/her decision on “gut feelings” rather than an actual legal rational.
When I have suggested this to legislators, they say that was not the intent.
If that is the case, the more simple conclusion is that the legislators that approve SCR 4013 just don’t know how the current process works and didn’t care to replicate the language to match other areas of the Article III of the constitution.
Measure 2 Itself Potentially Would Fail The “Single-Subject Rule”
Measure 2 itself is a complex ballot measure as illustrated by the language generated by the current Secretary of State.
By my count, there are 4 semi-colons within 2 sentences explaining what Measure 2 itself does. While each of these tackles the “topic” of initiated measures, are they all one subject, or is each action a subject.
An extremely aggressive enforcement the single subject rule could say there are 6 separate subjects in Measure 2:
The single-subject rule itself;
Requiring measure sponsors be electors (which they already have to be);
Requiring circulators be electors (which is already in Century Code, despite federal courts striking down that same law in South Dakota);
Requiring residential addresses instead of mailing addresses;
Increasing the signature requirement for constitutional measures from 4% to 5%;
Requiring two separate votes of the people.
Are all these things “one subject” or “one topic” addressing six different subjects?
We don’t know because the “single-subject rule” is not defined.
Should only the Secretary of State make that decision, even though the Supreme Court had to get involved when the Legislature could not meet the standard?
Conclusions
Article III of the North Dakota Constitution is titled the “Powers Reserved the People”.
While the idea of a single subject rule may sound good, without defining it, the only thing is can do is hinder the ability of the people to use the rights the constitution reserves to them.
Measure 2 places arbitrary and undefined power in the hands of one non-lawyer state official to make legal determinations. This can easily be abused, as it has been in other states.
All 6 of the actions in Measure 2 are designed to make it harder for the people to exercise their rights - and will have no impact on the special interests that have millions and millions of dollars to work with.
Measure 2 punishes North Dakota residents without deep pockets due to the problems created by special interests with unlimited resources.
It is wrong for the legislature to continue to try to convince voters they should give up the rights reserved to the voters.