Yesterday, the Senate State and Local Government committee heard testimony on SCR 4007, which is a proposed constitutional amendment to apply a single subject rule to initiated constitutional amendments.
I had written extensively about this bill in this week’s preview:
The idea of a single subject rule for ballot measures sounds good - in theory.
But much like how communism sounds good in theory, what happens in practice is very different.
The legislature itself found out how this works in 2023 when the OMB bill was challenged partially based on the existing single-subject rule in the constitution applicable to the legislature.
Attached to my testimony are several documents, including some case law documents and organizational writings.
The lack of definition to what a “single-subject” really is was part of the criticism of Measure 2 in 2024. The legislature has now had two full years, a Supreme Court decision, and another failed ballot measure to come up with a way to define “single-subject” in the context of ballot measures.
Earlier this week, Former Governor Ed Schafer informed me that he intended to support the concept of a single-subject rule, but wanted to see some language to clear up any problems that might arise from the vague and open-ended unilateral power the resolution language creates.
You can read my testimony on the resolution here:
The principles behind my suggested amendments are:
1. Require determination of “single-subject” to occur BEFORE approval to circulate.
*Letting signatures be collected prior to ruling would lead to weaponization.
2. Add “functionally related and germane” clause. (Source: Nevada version of rule)
3. Require the legislature to provide guidance prior to SecState enforcement.
4. Ensure that enforcement is the same as it would be on legislative actions for fairness.
5. Create an easy and fast appeals process for sponsoring committees.
Subject vs. Topic
Within the discussion of single-subject, one thing that often comes up is whether a “topic” and a “subject” are the same thing. If a sponsoring committee wants to eliminate the income tax and cut the sales tax by 1%, is that one subject: taxes, or two subjects: sales tax and income tax?
The legislature’s own website sorts bills by “topic” not by “subject” (attachment), and lists “Sales Tax” and “Income Tax” as two different topics. SCR 4007 either requires a declaration of how this will be determined, or a requirement that the legislature will provide the Secretary of State with guidance.
Danger Of Weaponization (“Back Door Veto”)
Unilateral and undefined power given to one elected official can be abused. In order to ensure a “single-subject rule” is not abused, it needs to be defined.Attached to my testimony are many legal sources showing how hard it is to define.
FAQ On Single Subject Rules
1. What is the single-subject rule, and why is it important in the context of laws and constitutional amendments?
The single-subject rule, present in the constitutions of several states, mandates that a piece of legislation or a ballot initiative can only address one subject. This prevents "logrolling" (combining unrelated items to gain support) and ensures transparency, so voters understand what they're voting on. Courts use this rule to strike down initiatives that violate it, either removing them from the ballot or voiding them after enactment. However, the interpretation and enforcement of this rule vary significantly across states, with some applying it more aggressively than others.
2. How do courts determine whether a law or initiative violates the single-subject rule? What tests or standards are used?
Courts employ various tests to determine if multiple parts of a bill are sufficiently related to constitute a single subject. These include:
Whether the provisions are "rationally related."
If there is a "unifying principle."
Whether there is a "natural and logical connection."
If they share a "common purpose or relationship."
Whether they have a "nexus to a common purpose."
If they "fairly relate to the same subject."
Whether they "relate, directly or indirectly, to the same general subject and have a mutual connection."
If there is a "common thread" or "filament" linking them to each other.
The most common standard is whether the provisions are "germane" or "reasonably germane" to each other or to some general subject. Courts often look for a reasonable basis for grouping multiple proposals together. Ultimately, the goal is to prevent unrelated provisions from being combined in a way that could mislead voters or create undesirable legislative bargains.
3. What are the potential consequences if a law or initiative is found to violate the single-subject rule?
If a court finds that a law or initiative violates the single-subject rule, it typically has two main options: invalidation (striking down the entire law) or severance (removing the problematic parts of the law). Invalidation can undo popular decisions and disrupt existing policy. Severance can distort the legislative process if the removed provisions were crucial to a political compromise, potentially creating winners and losers unintended by the original legislation.
4. How can the "saving and avoidance canons" be applied to the single-subject rule, and what benefits would this offer?
The saving and avoidance canons are principles of statutory interpretation. When applied to the single-subject rule, they suggest that if a law or ballot initiative is ambiguous, and one interpretation suggests multiple subjects while another suggests a single subject, the court should choose the interpretation that upholds the law's constitutionality. The saving canon applies when one interpretation clearly renders the statute unconstitutional and the avoidance canon applies when one interpretation possibly renders the statute unconstitutional. This approach can prevent the need to invalidate laws or excise portions of them, minimizing conflict with the legislative branch and respecting popular sovereignty. This approach can also avoid "de-constitutionalizing" single subject rule adjudication.
5. How do political factors and judicial ideology influence decisions in single-subject rule cases?
Studies suggest that judges are more likely to vote to uphold an initiative if their political affiliations align with the initiative's policy goals. In states with strict enforcement of the single-subject rule, this partisan influence is more pronounced. Judges may interpret the rule more liberally or strictly depending on their personal views on the underlying policy issue.
6. What are some common countermeasures used by state governments to evade initiatives, and how might the single-subject rule be affected?
State governments may attempt to undermine initiatives through various countermeasures, such as implementation sabotage, collateral attacks, direct repeal, judicial review, or reforms of the initiative process itself. When initiatives anticipate these countermeasures and attempt to address them preemptively, they often become more complex, increasing the likelihood that they will be challenged for violating the single-subject rule. The very act of trying to make an initiative "airtight" against governmental interference can ironically make it more vulnerable to legal challenges based on the single-subject rule.
7. In the context of marijuana legalization, what specific issues have led to single-subject rule challenges?
In the context of marijuana legalization, single-subject challenges have arisen due to the bundling of distinct but related issues within a single initiative. For example, an initiative that combines recreational marijuana, medical marijuana, and hemp regulation might be challenged on the grounds that these are separate subjects. Similarly, an initiative that legalizes marijuana and also addresses related issues like taxation, licensing, and regulation by local governments could face similar challenges.
8. What is the overall trend in single-subject rule jurisprudence regarding state legislation?
Most courts appear to interpret the concept of a "single subject" liberally and reject most single-subject challenges. Courts often state that they will only strike down laws on single-subject grounds if the violation is "clearly, plainly, and palpably so," or "manifestly gross and fraudulent". This deferential approach reflects respect for the legislative branch. However, nearly all courts that claim to be committed to this deferential and liberal interpretation of "subject" have, at one point, struck down laws on single-subject grounds.
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