A theory of direct democracy and the single subject rule

Columbia Law Review

Volumn 110, Issue 3, 2010, Pages 687-730

  Cooter, Robert D ^a   Gilbert, Michael D ^b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b UNIVERSITY OF VIRGINIA   (United States)

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[No Author keywords available]

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EID: 77954417963     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (183)

1. 1 Journal of the Nebraska Constitutional Convention 326 (1919) (quoting William Jennings Bryan).
2. See, e.g., David B. Magleby, Direct Legislation: Voting on Ballot Propositions in the United States 21-25 (1984) (noting Progressive reformers' "distrust of organizations" and that "core of the Progressive ideology was the belief that direct democracy is preferable to government by politicians and legislatures");
3. David D. Schmidt, Citizen Lawmakers: The Ballot Initiative Revolution 5-10 (1989) (detailing early American history of citizen initiatives);
4. Kenneth P. Miller, Madison's Revenge: Judicial Review of Direct Democracy 18-29 (2002) (unpublished Ph.D. dissertation, University of California, Berkeley) (on file with the Columbia Law Review) [hereinafter Miller, Madison's Revenge] (describing rise of direct democracy in United States, role of Populists and Progressives, and tension with Madisonian conception of republic).
5. See infra Part I.
6. Steve Lawrence, Million-Dollar Donors Flood California Ballot Propositions, San Jose Mercury News, Oct. 7, 2008, available at http://www.mercurynews.com/elections/ci-10662300 (on file with the Columbia Law Review);
7. see also Elizabeth Garrett & Elisabeth R. Gerber, Money in the Initiative and Referendum Process: Evidence of Its Effects and Prospects for Reform, in The Battle Over Citizen Lawmaking 73, 73 (M. Dane Waters ed., 2001) (reporting that in 1998 special interests spent nearly $400 million supporting or opposing propositions).
8. See Michael G. Hagen & Edward L. Lascher, Jr., The Popular Appeal of Direct Democracy 3-5, 8 (paper presented at annual meeting of Am. Pol. Sci. Ass'n, Sept. 1-4, 2005) (on file with the Columbia Law Review) (discussing empirical data on public support for direct democracy in California).
9. See infra Part I tbl.l.
10. See discussion infra notes 58-69 and accompanying text.
11. See, e.g., Colo. Const, art. V, § 1(5.5) ("No measure shall be proposed by petition containing more than one subject . . . ."). The rule also applies in many states to ordinary legislation. See Michael D. Gilbert, Single Subject Rules and the Legislative Process, 67 U. Pitt. L. Rev. 803, 812 (2006) [hereinafter Gilbert, Single Subject] ("By 1959, some version of the rule had been adopted in forty-three states.").
12. Millard H. Ruud, "No Law Shall Embrace More than One Subject," 42 Minn. L. Rev. 389, 391 (1958). Although Ruud examined the purposes of the single subject rule as applied to legislation, courts understand the same purposes to apply in direct democracy. Anne G. Campbell, In the Eye of the Beholder: The Single Subject Rule for Ballot Initiatives, in The Battle Over Citizen Lawmaking, supra note 4, at 131, 133-34.
13. Wash. Ass'n of Neighborhood Stores v. State, 70 P.3d 920, 924 (Wash. 2003);
14. Gilbert, Single Subject, supra note 8, at 815-16;
15. Kurt G. Kastorf, Comment, Logrolling Gets Logrolled: Same-Sex Marriage, Direct Democracy, and the Single Subject Rule, 54 Emory L.J. 1633, 1644-52 (2005);
16. see also Campbell, supra note 9, at 134 (quoting court opinions indicating concern with riders). But see Daniel H. Lowenstein, California Initiatives and the Single-Subject Rule, 30 UCLA L. Rev. 936, 961-63 (1983) [hereinafter Lowenstein, California Initiatives] (calling riders "sinister" but expressing skepticism that single subject rule should target them).
17. See, e.g., Cal. Const, art. 2, § 8(d) ("An initiative measure embracing more than one subject may not be submitted to the electors . . . ."); supra note 8 and accompanying text.
18. Manduley v. Superior Court, 41 P.3d 3, 37 (Cal. 2002) (Moreno, J., concurring) (citing Lowenstein, California Initiatives, supra note 10, at 938-42).
19. See Perdue v. O'Kelley, 632 S.E.2d 110, 112-13 (Ga. 2006) (discussing trial court's interpretation of statute as dual subject and holding it to be single subject).
20. In re Title and Ballot Title and Submission Clause for 2005-2006 No. 55, 138 P.3d 273, 284 (Colo. 2006) (Coats, J., dissenting).
21. Richard D. Lamm, Op-Ed., Politicians in Black Robes, Denver Post, June 16, 2006, at 7B.
22. Richard L. Hasen, Ending Court Protection of Voters from the Initiative Process, 116 Yale L.J. Pocket Part 117, 119 (2006), at http://www.thepocketpart. org/images/pdfs/71.pdf (on file with the Columbia Law Review).
23. In re Title, 138 P.3d at 275.
24. Id.
25. To be precise, the court stated that the proposal had two "purposes," and that these could not be considered part of the same subject. Id. at 280-82.
26. Editorial, Court's Ballot Ruling Needs a Second Look, Denver Post, June 14, 2006, at 6B.
27. Lamm, supra note 15, at 7B.
28. See Campbell, supra note 9, at 137-38. For a state-by-state overview of single subject rules that apply to statewide initiatives, see generally Rachael Downey, Michelle Hargrove & Vanessa Locklin, A Survey of the Single Subject Rule as Applied to Statewide Initiatives, 13 J. Contemp. Legal Issues 579 (2004).
29. See Gilbert, Single Subject, supra note 8, at 818-22 (presenting data on frequency of single subject adjudication).
30. See, e.g., Daniel H. Lowenstein, Initiatives and the New Single Subject Rule, 1 Election L.J. 35, 35-44 (2002) [hereinafter Lowenstein, New Single Subject Rule] (describing recent trend in many states to apply rule more strictly);
31. Kenneth P. Miller, Courts as Watchdogs of the Washington State Initiative Process, 24 Seattle U. L. Rev. 1053, 1080-84 (2001) [hereinafter Miller, Courts as Watchdogs] (same).
32. For now we illustrate with a homely example: Suppose a restaurant patron is considering what breakfast to order. If she wants eggs no matter what and bacon no matter what, then she has sufficiently separable preferences and will order each regardless of whether the other is available. If she only wants biscuits if they come with gravy, then she has insufficiently separable preferences and will only order one if she is certain to get the other. If she hates the combination of eggs and gravy, then she has insufficiently separable preferences and will only order one if she is certain the plate will not contain the other. Applying our concept to breakfast menus, this patron can be asked whether she wants eggs without providing information on bacon, but she must know the gravy situation before ordering biscuits or eggs.
33. For the mathematical proofs, see the Appendix infra.
34. See Campbell, supra note 9, at 133-34 (describing informational purpose of single subject rule and noting this purpose is widely cited by courts).
35. See, e.g., Glen Staszewski, The Bait-And-Switch in Direct Democracy, 2006 Wis. L. Rev. 17, 32-39 (describing structural features of initiative process that make it possible to mislead voters and produce "collateral consequences" they do not intend).
36. See Miller, Madison's Revenge, supra note 2, at 22-29 (describing role of Populists and Progressives in rise of direct democracy).
37. See id. For more history of direct democracy, see, e.g., Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall 1-20, 38-59 (1989); Magleby, supra note 2, at 20-34;
38. Steven L. Piott, Giving Voters a Voice: The Origins of the Initiative and Referendum in America (2003);
39. Laura Tallian, Direct Democracy: An Historical Analysis of the Initiative, Referendum, and Recall Process (1977).
40. The United States does not have a national initiative. See Dennis Polhill, Initiative & Referendum Inst., The Issue of a National Initiative Process, at http:// www.iandrinstitute.org/National%20I&R.htm (last visited Jan. 22, 2010) (on file with the Columbia Law Review) (discussing efforts to adopt national initiative and referendum processes in United States). The Initiative and Referendum Institute is a leading repository of information on direct democracy in the United States.
41. This Article does not address the recall, which is another category of direct democracy. See Tallian, supra note 30, at 15, 26, 39, 50 (providing examples of recalls).
42. See Initiative & Referendum Inst., State-by-State List of Initiative and Referendum Provisions, at http://www.iandrinstitute.org/statewide-i&r. htm (last visited Jan. 22, 2010) (on file with the Columbia Law Review). Note that the Initiative and Referendum Institute uses slightly different terminology than we employ in this Article. It refers to what we define as a referendum as a "legislative measure" or "legislative proposition," while what we define as an initiative it refers to as either an "initiative" or a "referendum." See Initiative & Referendum Inst., What Are Ballot Propositions, Initiatives, and Referendums?, at http:/ /www.iandrinstitute.org/Quick%20Fact%20-%20What%20is%20I&R.htm (last visited Jan. 22, 2010) (on file with the Columbia Law Review) (providing Institute's definitions of "initiative," "referendum," and "legislative proposition").
43. See Tracy M. Gordon, The Local Initiative in California 3 (2004) (citing John M. Matsusaka, The Initiative and Referendum in American Cities: Basic Patterns, in The Initiative and Referendum Almanac: A Comprehensive Guide to Citizen Lawmaking Around the World 31, 36 (M. Dane Waters ed., 2003)); Tari Renner, Initiative & Referendum Inst., Local Initiative and Referendum in the U.S., at http://www.iandrinstitute.org/Local%20I&R.htm (last visited Jan. 22, 2010) (on file with the Columbia Law Review) (stating that, as of 1996, fifty-eight percent of cities responding to survey had initiative process).
44. See Renner, supra note 34 (noting "nearly 90 percent" of American cities "report having some form of referendum procedure").
45. Data on local initiatives are sparse but suggestive. One study found that approximately 730 local initiatives were circulated for signatures in California between 1990 and 2000. Roughly seventy-five percent of those made it onto the local ballot, and of those, approximately forty-five percent passed. Gordon, supra note 34, at 19-20.
46. This table is compiled from data provided in Initiative & Referendum Inst., Initiative Use, at http://www.iandrinstitute.org/ IRI%20Initiative%20Use%20(1904-2008).pdf (last visited Jan. 22, 2010) (on file with the Columbia Law Review).
47. See Jim Schultz, The Initiative Cookbook: Recipes & Stories from California's Ballot Wars 2-3 (1998) (discussing California's passage of Proposition 13).
48. Id. at 3.
49. See Hal Snyder, Gill-net Ban to Come in Gradual Increments, Orange County Reg., Nov. 18, 1990, at C21 (discussing ban on gill-net fishing).
50. See Carl T. Hall, State Voters Strongly Backing Cell Research, S.F. Chron., Nov. 3, 2004, at B4 (reporting passage of Proposition 71, which authorized funding for stem cell research).
51. Initiative & Referendum Inst., Statewide Initiative Usage, at http://www.iandrinstitute.org/New%20IRI%20Website%20Info/I& R%20Research%20and%20History/I&R%20at%20the%20Statewide%20Level/ Usage%20history/Colorado.pdf (last visited Jan. 22, 2010) (on file with the Columbia Law Review).
52. See Monica Davey, Liberals Find Rays of Hope on Ballot Measures, N.Y. Times, Nov. 9, 2006, at P16 (noting Arizona voters' rejection of constitutional amendment to define marriage as between man and woman was first such rejection in twenty-eight attempts since 1998).
53. See Maura Dolan, Battles Brew as Gay Marriage Ban Is Upheld, L.A. Times, May 27, 2009, at Al (documenting California Supreme Court's ruling that ballot measure prohibiting gay marriage is constitutional); Jessica Garrison & Joanna Lin, Mormons' Prop. 8 Aid Protested, L.A. Times, Nov. 7, 2008, at Bl (documenting protests by gay rights activists against Mormon Church in wake of its aid to ballot initiative prohibiting gay marriage); Carol J. Williams, Gay Marriage Battle Relaunches Today as Prop. 8 is Challenged in Court, LA. Times LA. Now Blog, May 27, 2009, at http://latimesblogs.latimes.com/lanow/2009/05/ new-front-in-prop-8-battle-launched-today-with-federal-suit.html (on file with the Columbia Law Review) (discussing Ted Olson and David Boies's challenge to Prop. 8 in federal court).
54. S. 469 (2005).
55. See Patrick Hoge, Eminent Domain: Supporters Plan to Try Again, Maybe in 2008, S.F. Chron., Nov. 9, 2006, at A20 (describing eminent domain initiatives).
56. Of 208 single subject determinations made by state courts between 1980 and 2006, only six involved challenges to referenda. See Michael D. Gilbert, Law, Politics, and Preferences: An Economic Analysis of Direct Democracy and the Single Subject Rule 43, 45 tbl.3.5 (2008) (unpublished Ph.D. dissertation, University of California, Berkeley) (on file with the Columbia Law Review).
57. The Federalist No. 10, at 62 (James Madison) (Jacob E. Cooke ed., 1961).
58. Id.
59. See Barry R. Weingast & William J. Marshall, The Industrial Organization of Congress; or, Why Legislatures, Like Firms, Are Not Organized as Markets, 96 J. Pol. Econ. 132, 151 (1988) ("[Legislators opt for committees relevant to their constituents' interests . . . .").
60. See id. at 152 (arguing committees "institutionalize trades over influence so as to give their members greater control over policies with [sic] their jurisdiction").
61. See Keith Krehbiel, Information and Legislative Organization 73-75 (1991) (discussing informational efficiency effects of specialization through committees).
62. See Gary W. Cox & Matthew D. McCubbins, Legislative Leviathan: Party Government in the House 83-135 (Univ. of Cal. Press 1993) (discussing party organization in legislature as solution to "collective dilemmas that entail electoral inefficiencies" (emphasis omitted)).
63. For an example of such procedural rules, see generally Paul Mason, Mason's Manual of Legislative Procedure (2000). According to the National Conference of State Legislatures, this manual is used in "[s]eventy of the 99 legislative chambers in the United States." Nat'l Conference of State Legislatures, Using Mason's Manual of Legislative Procedure: The Advantages of Legislative Bodies, at http://www.ncsl.org/LegislaturesElections/ OrganizationProcedureFacilities/MasonsManualforLegislativeBodies/tabid/13525/ Default.aspx (last visited Jan. 22, 2010) (on file with the Columbia Law Review).
64. For the seminal exposition of this idea, see James M. Buchanan & Gordon Tullock, The Calculus of Consent 105-16, 122-23 (1962) (describing benefits of logrolling).
65. In theory, legislators could benefit from the bargains in which they participate but suffer even greater harm from the bargains from which they are excluded. In the extreme, all legislators would have an incentive to bargain even though the aggregate effect of all bargains would make every legislator worse off. See William H. Riker & Steven J. Brams, The Paradox of Vote Trading, 67 Am. Pol. Sci. Rev. 1235, 1236 (1973) (demonstrating that "while each trade is individually advantageous to the traders, the sum of the trades is disadvantageous to everybody, including the traders themselves"). There are reasons to believe that such outcomes are unlikely to occur in practice.
66. See Robert D. Cooter, The Strategic Constitution 53-54 (2000) (arguing political bargaining produces efficient outcomes assuming zero transaction costs, and forms of political organization such as "[t]he formation of parties, the creation of legislative committees, and the control of the legislative agenda" reduce transaction costs of political bargaining); Gilbert, Single Subject, supra note 8, at 835, 851-53 (arguing if logrolling systematically made all legislators worse off, legislators would cooperate to eliminate it).
67. The Federalist No. 10, supra note 48, at 62 (James Madison).
68. This is a longstanding criticism of direct democracy. See, e.g., Magleby, supra note 2, at 29-30 (listing criticisms of direct democracy, including complex ballots, "frivolous" measures, lack of voter expertise, and lack of mechanisms for compromise); John Ferejohn, Reforming the Initiative Process, in Constitutional Reform in California 313, 313-25 (Bruce E. Cain & Roger G. Noll eds., 1995) (listing criticisms of direct democracy and offering reform solutions).
69. Cf. Clayton P. Gillette, Plebiscites, Participation, and Collective Action in Local Government Law, 86 Mich. L. Rev. 930, 967 (1988) ("[T]he inability of the electorate to 'dicker . . . for support now in exchange for your support on something else later' undermines the 'legitimacy' of plebiscites."
70. quoting Frank I. Michelman, Political Markets and Community Self-Determination: Competing Judicial Models of Local Government Legitimacy, 53 Ind. L.J. 145, 182 (1977-1978).
71. See Derrick A. Bell, Jr., The Referendum: Democracy's Barrier to Racial Equality, 54 Wash. L. Rev. 1, 13-22 (1978) (arguing direct democracy is likely to impose high costs on minorities);
72. Julian N. Eule, Judicial Review of Direct Democracy, 99 Yale L.J. 1503, 1551-54 (1990) (same);
73. Clayton P. Gillette, Expropriation and Institutional Design in State and Local Government Law, 80 Va. L. Rev. 625, 667-68 (1994) (noting proponents of initiatives, unlike legislators, are not engaged in repeat play with third parties harmed by particular bargains). All ballot propositions, whether logrolled or not, are subject to this criticism. However, logrolls are more likely to be harmful to the minority that opposes them than non4ogrolls. The former necessarily have multiple parts. Citizens who vote against a proposition with multiple parts do so because they oppose at least one and possibly all of those parts. When multiple provisions harm a minority, the sum of that harm is likely to be greater than the harm caused to a minority by one, stand-alone provision.
74. See, e.g., David H. Koehler, Vote Trading and the Voting Paradox: A Proof of Logical Equivalence, 69 Am. Pol. Sci. Rev. 954, 954 (1975) (demonstrating circumstances in which "an endless sequence" of vote trading can occur "under conditions of individual rationality");
75. Richard D. McKelvey, Intransitivities in Multidimensional Voting Models and Some Implications for Agenda Control, 12 J. Econ. Theory 472, 472 (1976) (demonstrating voting procedure design that yields outcomes that continuously run in circles).
76. For an overview of the literature, see generally Dennis C. Mueller, Public Choice III, at 79-114 (2003).
77. The following table lists each block of voters' complete preference orderings and utility for every possible combination of policies. It shows that A, B, and C have only minority support on their own, but bargaining generates policies (AB, AC, BC, ABC) that a majority prefers to the status quo. (Table Presented)
78. Blocks 1 and 2 prefer AB to AC; blocks 1 and 3 prefer AC to BC; blocks 2 and 3 prefer BC to AB.
79. See William H. Riker, Liberalism Against Populism 119-23 (1982) ("[A]s the number of voters and alternatives increases, so do the number of profiles without a Condorcet winner."). Even if no political bargaining takes place and citizens cast separate votes on standalone issues, cycling can still occur if citizens have "double-peaked preferences." Cooter, supra note 56, at 37-41. In such circumstances, a representative body that can induce stability with institutions and political bargaining should resolve the policy issue.
80. Legislatures have agenda setters who can prevent cycling. See, e.g., Cooter, supra note 56, at 43-46 ("[C]ontrol of the legislative agenda avoids intransitivities by giving the agenda-setter the power to choose among intransitive alternatives."); Mueller, supra note 61, at 112-14 (arguing agenda setters have significant power to bring about victory for own preferred outcome). For example, a legislative leader could limit the choice to a vote between AB and the status quo, which AB would win. Assuming the leader approves of this outcome, she could refuse to permit additional votes on these issues, making AB a stable logroll, at least until her views change. Likewise, if the transaction costs of political bargaining are low, legislators could strike a stable bargain. See Cooter, supra note 56, at 53 (applying Coase Theorem to political bargaining). Because they interact repeatedly and can punish each other for disloyalty through future votes, committee assignments, and other mechanisms, legislators have an incentive to remain faithful to their deals once struck. This preempts cycling.
81. The initiative process operates without designated agenda setters. Some states forbid initiatives from addressing some topics, and other states have rules that prevent initiatives from being repealed or amended for a certain period. See Philip L. Dubois & Floyd Feeney, Lawmaking by Initiative: Issues, Options, and Comparisons 78-85 (1998) (surveying legal limits imposed by states on initiative process). But in general, initiatives can be offered by anyone on any issue at any time. They are not limited by rules of procedure and other structures that can induce equilibrium. Similarly, citizens cannot negotiate stable bargains with one another. Citizens are not engaged in repeat play with one another, and they do not see one another's voting records. They cannot punish one another for being unfaithful. In short, they have no institutions with which to prevent majorities from coalescing around one bargain, unraveling, and coalescing around another in a cycle.
82. We know of no systematic effort to identify examples of cycling in direct democracy, but anecdotes are suggestive. See Thad Kousser & Mathew D. McCubbins, Social Choice, Crypto-Initiatives, and Policymaking by Direct Democracy, 78 S. Cal. L. Rev. 949, 965 (2005) (identifying voting patterns in Oregon and Massachusetts that could be interpreted to exhibit cyclical behavior). Cycling might be particularly difficult to observe in direct democracy because of the time element. Unlike legislators, citizens do not cast votes, learn the outcomes of those votes, and then vote again in rapid succession. Months or years pass between elections, and several elections would be required for an entire cycle to be observed. Voters' preferences may not be stable for such long periods, so outcomes that appear circular may reflect changing preferences, not cycling.
83. Cf. Richard J. Ellis, Democratic Delusions: The Initiative Process in America 141 (2002) ("If an initiative contains two or more distinct questions, it becomes virtually impossible to determine what the majority meant to say in approving or rejecting an initiative.").
84. Thomas Stratmann, Logrolling, in Perspectives on Public Choice: A Handbook 322, 340 (Dennis C. Mueller ed., 1997) ("[E]ven if no cycle is observed and coalitions are stable, the fact that a potential for a cycle exists implies that the outcome of the collective decision is arbitrary." (citing Riker & Brams, supra note 56, at 1236)).
85. Forbidding logrolling in direct democracy would tend to limit ballot proposals to a single dimension of policy choice. This would in turn animate the median voter theorem. See generally Duncan Black, The Theory of Committees and Elections (1958);
86. Anthony Downs, An Economic Theory of Democracy (1957). When the median voter theorem applies, "majority will" is a concrete concept. With respect to each issue, a majority prefers one specific policy (the ideal point of the median voter) to every alternative. The "will of the people" is clear and consistent: Move policy to that ideal point and leave it there.
87. In re Marriage Cases, 183 P.3d 384, 400-02 (Cal. 2008).
88. Romer v. Evans, 517 U.S. 620, 633 (1996).
89. Robert Luce, Legislative Procedure 548 (1922).
90. Id.
91. Id. at 549 (citing E.I. Miller, The Legislature of the Province of Virginia 111 (1908)) (internal quotations omitted).
92. Robert F. Williams, The New Jersey State Constitution: A Reference Guide 75 (1990) (internal citation omitted).
93. See N.J. Const, art. IV, § 7, ¶ 4 ("To avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object. . . ."); Ruud, supra note 9, at 390 (discussing New Jersey's single subject rule). One limited single subject rule predates New Jersey's general provision. A single subject requirement for bills pertaining to government salaries materialized in the Illinois Constitution in 1818. Ruud, supra note 9, at 389 ("[T]he first effort to deal with the problem [of the omnibus bill] through constitutional means was a provision in the Illinois constitution ... in 1818. It limited bills appropriating salaries for members of the legislature and for officers of the government to that subject.").
94. Gilbert, Single Subject, supra note 8, at 822 fig.2.
95. See id.
96. Neb. Const, art. III, § 14.
97. Only two states, Illinois and Indiana, have legislative single subject rules but not title requirements. See Brannon P. Denning & Brooks R. Smith, Uneasy Riders: The Case for a Truth-in-Legislation Amendment, 1999 Utah L. Rev. 957, 1005-23 app. A (providing state-by-state information on constitutional single subject provisions).
98. See Downey, Hargrove & Locklin, supra note 22, at 579-627 (describing initiative process rules in each state).
99. Fair Political Practices Comm'n v. Superior Court, 599 P.2d 46, 48 (Cal. 1979).
100. Lowenstein, California Initiatives, supra note 10, at 949-50.
101. Outcelt v. Bruce, 959 P.2d 822, 826 (Colo. 1998).
102. See Campbell, supra note 9, at 138 (listing states with implied single subject requirements).
103. See Lowenstein, New Single Subject Rule, supra note 24, at 35 ("In most states, courts used the same deferential standards to apply the single subject rule to initiatives that they had long used to apply the rule to laws enacted by the legislature."); see also Campbell, supra note 9, at 153-56 (describing standards of review in Alaska, California, Ohio, Oklahoma, and Oregon). For an argument that the rule should be interpreted more leniently in the legislative setting, see Gilbert, Single Subject, supra note 8, at 809.
104. See Campbell, supra note 9, at 156-58 (describing Florida and Montana standards).
105. See id. at 156-61 (describing practice in Colorado, Missouri, and Washington to apply rule more strictly to initiatives).
106. For direct democracy cases that identify logrolling as the target of the single subject rule, see, e.g., In re Voluntary Universal Pre-Rindergarten Educ, 824 So. 2d 161, 165 (Fla. 2002);
107. Missourians to Protect the Initiative Process v. Blunt, 799 S.W.2d 824, 830 (Mo. 1990);
108. State v. Broadaway, 942 P.2d 363, 367 (Wash. 1997).
109. See Manduley v. Superior Court, 41 P.3d 3, 8 (Cal. 2002).
110. See id. at 27-28 (discussing specific provisions of Gang Violence and Juvenile Crime Prevention Initiative).
111. For a discussion of Proposition 140, see Legislature v. Eu, 816 P.2d 1309, 1312-14 (Cal. 1991).
112. See id.; Lowenstein, New Single Subject Rule, supra note 24, at 39.
113. See Shaun Bowler & Todd Donovan, Demanding Choices: Opinion, Voting, and Direct Democracy 107-17 (1998) (describing multiple-subject logrolls and distributive logrolls).
114. See, e.g., Loontjer v. Robinson, 670 N.W.2d 301, 314-15 (Neb. 2003) (Wright, J., concurring) (stating single subject rule prevents groups from combining proposals that, standing alone, would not gather majority support into measures that would gather majority support).
115. Raven v. Deukmejian, 801 P.2d 1077, 1093 (Cal. 1990) (Mosk, J., concurring in part and dissenting in part).
116. Riding is often characterized as a species of logrolling, but the two are analytically distinct. Logrolling is tantamount to political bargaining. But for the bargain, nothing would pass. Riding, on the other hand, does not result from exchange but rather manipulations of procedure. Irrespective of the rider, something will pass. See generally Gilbert, Single Subject, supra note 8, at 836-44 (distinguishing riding and logrolling).
117. Sincere voters will vote in favor of the proposition that combines A and B because they prefer it to the status quo, and we assume that voters in direct democracy are sincere. See infra note 134. Some voters might like to eliminate B with another ballot proposition in a subsequent election. However, collective action problems may prevent this. In general, when the transaction costs of placing a proposition on the ballot are high, riders pose a greater risk because they are harder to remove with a subsequent proposition.
118. Gilbert, Single Subject, supra note 8, at 836-40. A situation could arise in which the welfare gains from attaching a rider outweigh the welfare losses produced by the rider. For example, the welfare gains that a minority receives from attaching a rider may outweigh the welfare losses imposed by the rider on the majority. Id. at 839. In that case, riding would be socially beneficial. We are skeptical, however, that such outcomes are the norm. In any case, riders that command only minority support should not be enacted through direct democracy, a majoritarian institution, as this would give the imprimatur of legitimacy that majority support provides to a policy supported only by a minority.
119. Ellis, supra note 68, at 103.
120. Id.
121. Id.
122. Id.
123. Id. at 104.
124. Id. at 145.
125. The initiative violated Oregon's "separate-vote" rule. Id. For the full decision, see Armatta v. Ritzhaber, 959 P.2d 49, 51 (Or. 1998) (holding Measure 40 did "not comply with the requirements for adopting a constitutional amendment").
126. Ellis, supra note 68, at 145-46.
127. Id. at 146.
128. For other examples of riding in direct democracy, see Dubois & Feeney, supra note 66, at 143-44 (describing "trojan [sic] horses" in California elections); Ellis, supra note 68, at 145 (describing Nevada Supreme Court's separation of ballot initiative into two questions, only one of which passed).
129. See Campbell, supra note 9, at 133 ("[S]ingle subject rules seek ... to make it easier for both legislators and voters to inform themselves about policy changes being proposed.").
130. See id. at 133 (describing "informational purposes" underlying different states' single subject rules).
131. See id. (describing how "in the United States the title [to an act] has been made a matter of primary importance"); see also, e.g., Wyo. Nat'l Abortion Rights Action League v. Karpan, 881 P.2d 281, 290 (Wyo. 1994) (stating single subject rule prevents "the fraud or surprise that could result if provisions contained in the body of a bill were not reflected in a general way in the title itself).
132. See, e.g., supra notes 11 and 77; supra note 80 and accompanying text.
133. For an excellent discussion, see Lowenstein, California Initiatives, supra note 10, at 938-42.
134. Manduley v. Superior Court, 41 P.3d 3, 8 (Cal. 2002).
135. Id. at 27-29.
136. Id. at 28.
137. Id. at 29.
138. Lowenstein, California Initiatives, supra note 10, at 942.
139. See, e.g., Cal. Ass'n of Retail Tobacconists v. State, 135 Cal. Rptr. 2d 224, 236-37 (Ct. App. 2003) (concluding that "provisions [of proposition at issue] are reasonably germane to [their] goal and are sufficiently functionally related to one another to satisfy the single-subject rule").
140. In re Ltd. Political Terms in Certain Elective Offices, 592 So. 2d 225, 231 (Fla. 1991) (advisory opinion) (Kogan, J., concurring in part and dissenting in part) (citation omitted).
141. Or. Educ. Ass'n v. Phillips, 727 P.2d 602, 612 (Or. 1986) (en banc) (Linde, J., concurring).
142. In re Title, Ballot Title and Submission Clause for 2005-2006 No. 74, 136 P.3d 237, 244 (Colo. 2006) (Coats, J., dissenting).
143. In re Title and Ballot Title and Submission Clause for 2005-2006 No. 55, 138 P.3d 273, 283 (Colo. 2006) (Coats, J., dissenting).
144. See, e.g., Buchanan v. Kirkpatrick, 615 S.W.2d 6, 14 (Mo. 1981) (en banc) (concluding all provisions in contested proposition were " 'properly connected'" to subject of "limiting taxes and governmental expenditures within Missouri").
145. Yute Air Alaska, Inc. v. McAlpine, 698 P.2d 1173, 1180 (Alaska 1985).
146. See, e.g., United Gamefowl Breeders Ass'n of Mo. v. Nixon, 19 S.W.3d 137, 140 (Mo. 2000) (en banc) (stating without explanation that subject of proposition in question "is clear" and contested provision falls under it).
147. See In re Indep. Nonpartisan Comm'n to Apportion Legislative & Cong. Dists. Which Replaces Apportionment by Legislature, 926 So. 2d 1218, 1229 (Fla. 2006) (advisory opinion) (reapportionment); O'Kelley v. Perdue, No. 2004-CV-93494, 2006 WL 1350171, at *10 (Ga. Super. Ct. May 16, 2006), overruled, 632 S.E.2d 110 (Ga. 2006) (gay marriage); supra note 17 and accompanying text (immigration).
148. Or. Educ. Ass'n v. Phillips, 727 P.2d 602, 612 (Or. 1986) (en banc) (Linde, J., concurring).
149. Cf. In re Title, Ballot Title & Submission Clause for 2005-2006 No. 74, 136 P.3d 237, 244 (Colo. 2006) (Coats, J., dissenting) ("The majority makes no attempt to relate its finding of multiple subjects to these purposes [of the rule].").
150. League of Women Voters v. Eu, 9 Cal. Rptr. 2d 416, 428 (Ct. App. 1992).
151. This definition differs from, but does not supersede, the definition of "subject" provided in Gilbert, Single Subject, supra note 8, at 858 ("A bill can be said to embrace but one subject when all of its components command majority support due to their individual merits or legislative bargaining." (emphasis omitted)). The relatively broad definition provided there applies to legislation, whereas the narrower articulation provided here applies to initiatives. In Gilbert, the test for identifying single subject violations requires courts to divide challenged bills into "functionally related" components. Id. at 860-61. Functionally related components should be understood to mean sets of proposals across which most legislators have insufficiently separable preferences.
152. Translating preferences into votes requires an assumption about voters' behavior, which we describe in Appendix A and reproduce here: Voters vote simultaneously rather than sequentially on ballot propositions, and they discount future elections because they cannot forecast the agenda. Consequently, we assume that voters vote sincerely, by which we mean that they vote for every proposition that yields at least as much utility as the status quo if it wins. This assumption permits us to express the concept of separability using the language of game theory. A voter has a weakly dominant strategy for voting on a policy proposal when always voting the same way-for or against-yields a payoff at least as great as the payoff from voting any other way, regardless of whether other proposals pass or fail. The voter does not have a weakly dominant strategy if her optimal vote on one proposal hinges on whether other proposals pass or fail. If a voter votes sincerely and has a weakly dominant strategy for voting on each of two policy proposals, then she has sufficiently separable preferences for them. Otherwise her preferences for the proposals are insufficiently separable. Under our definition of "subject," if a majority of voters have a weakly dominant strategy for voting on each of two proposals, those proposals are separate subjects. If a majority of voters do not have a weakly dominant strategy for voting on both proposals, the proposals together constitute one subject.
153. We base this example on the proposition at issue in California Trial Lawyers Ass'n v. Eu, which the California Court of Appeals found to violate the single subject rule. 245 Cal. Rptr. 916, 922 (Ct. App. 1988).
154. We base this example on "Big Green," an omnibus environmental protection measure on California's November 1990 ballot. See Beatrice Motamedi, Ag Initiatives Worry Farmers: Industry Could Lose Billions, S.F. Chron., Oct. 8, 1990, at C1 (describing the measure, including its prohibitions on pesticides). The measure failed. Tony Knight, Big Green Goes Down as Big Loser, L.A. Daily News, Nov. 7, 1990, at N1. Had it passed, a single subject challenge inevitably would have followed. See Elliot Diringer, Farmers' Group Files Challenge to "Big Green", S.F. Chron., July 18, 1990, at A9 ("In a petition . . . the Central California Farmers Association asks that the wide-ranging initiative be declared unconstitutional because it addresses more than one subject.").
155. We base this example on Measures 9 and 11, voted on simultaneously by Oregonians in November 1986. See Michael D. Gilbert & Joshua M. Levine, Less Can Be More: Conflicting Ballot Proposals and the Highest Vote Rule, 38 J. Legal Stud. 383, 415 tblAl (2009) (describing Oregon property tax initiatives).
156. See infra Parts IV.B-C.
157. Cal. Ass'n of Retail Tobacconists v. State, 135 Cal. Rptr. 2d 224, 237 (Ct. App. 2003) (internal citations, quotations, and emphasis omitted).
158. Jones v. Polhill, 46 P.3d 438, 440 (Colo. 2002) (en banc) (internal citations and quotations omitted).
159. Amalgamated Transit Union Local 587 v. State, 11 P.3d 762, 782 (Wash. 2000) (en banc).
160. Taxpayer Prot. Alliance v. Arizonans Against Unfair Tax Schemes, 16 P.3d 207, 208 (Ariz. 2001) (en banc) (internal citations and quotations omitted).
161. United Gamefowl Breeders Ass'n of Mo. v. Nixon, 19 S.W.3d 137, 140 (Mo. 2000) (en banc) (internal citation omitted).
162. See Croft v. Parnell, No. 3AN-07-9339 C1, at *10 (Alaska Super. Ct. June 26, 2008) (on file with the Columbia Law Review) (holding "Clean Elections Initiative" violates single subject rule).
163. Id. at *9-*10.
164. 1.
165. In contrast, legislators could agree to logroll two proposals, A and B. Rather than combine both proposals into one bill, AB, participants in the logroll could agree to vote in favor of A and B separately. This cannot take place in direct democracy, as thousands of citizens cannot coordinate their votes.
166. 1 and
167. The potential for collective action problems to prevent individuals from incurring the costs associated with placing a socially beneficial, majority-supported proposal on the ballot may be seen as a reason to reject this purpose of the single subject rule and condone riders. Riders could be understood as a reward for those sponsors who undertake the costs necessary to qualify a proposal that benefits a majority of voters. We reject this reasoning. While collective action problems may pose a dilemma for direct democracy, the solution does not lie in permitting sponsors to identify proposals that will receive majority support and load them with special interest riders until the value of the omnibus package to most voters is just greater than the status quo.
168. See Dean Lacy & Emerson M.S. Niou, A Problem With Referendums, 12 J. Theoretical Pol. 5, 6-8, 10-16 (2000) (demonstrating direct democracy may produce "perversion of majority rule" when "voters have nonseparable preferences for issues on a referendum").
169. The democratic process approach to the single subject rule cannot resolve this dilemma. The rule cannot be used to force sponsors to combine proposals over which most voters have inseparable preferences. They may prefer to propose such measures separately. Similarly, proposals over which most voters have inseparable preferences may originate with different sponsors. Unless those sponsors coordinate their behavior, their proposals will be submitted for separate votes. Still, interpreting the single subject rule in accordance with our theory could mitigate the problem.
170. Preferences that are not sufficiently separable come in different configurations. With respect to two proposals, some voters may want either to pass but not both, or they may want both to pass but not either one individually. So long as a majority of voters do not have sufficiently separable preferences for two proposals in any configuration, then those proposals together constitute a single subject.
171. Collecting poll data is a routine component of initiative campaigns. See Schultz, supra note 38, at 15-18 (noting importance of public opinion research to initiative campaigns).
172. In theory, voters may recognize that their responses to poll questions could have implications for future single subject adjudication. Therefore, they may give insincere responses, undermining the usefulness of the poll. In practice, it seems unlikely that enough voters will behave this way to warrant concern. Most voters probably do not know about the single subject rule, let alone know how courts interpret it and, therefore, what response to a poll question would promote their personal policy agendas. The individuals conducting the polls could falsify poll results, but they would risk their reputations as pollsters (and therefore their future employment prospects) and, depending on how the evidence is introduced in court, may face sanctions for producing false evidence.
173. Some states only permit single subject challenges to be raised before the proposition has been voted on, while others only permit challenges after the election, and still other states permit either. Dubois & Feeney, supra note 66, at 43-45 (describing "preelection judicial review" in various states); Campbell, supra note 9, at 139-47 (discussing when states allow single subject challenges and repercussions of differing schemes).
174. See, e.g., Ariz. Const, art. IV, pt. 2, § 13 (requiring some single subject violations to be remedied by severing).
175. If the sponsors of the initiative were interested primarily in the rider, they will not re-propose just the popular proposal. Given collective action problems, no one else may do so either. Even if the popular proposal is re-proposed, it could be years before it appears on the ballot.
176. Ruud, supra note 9, at 399.
177. An example will clarify this test. Assume that 100 citizens are faced with three measures, A, B, and C, and they have separable preferences for them. A is supported by 80 citizens. B and C are each supported by 40 non-overlapping citizens, and B's supporters would gladly enact C in order to get B and vice versa. Now assume that A, B, and C are logrolled into one proposition, ABC, and that the omnibus proposition would receive majority support. Now assume that a rider, D, is attached to ABC. ABCD is presented to voters and passes. Because most voters have separable preferences for the components of the proposition, ABCD violates the single subject rule. If A were removed and voted upon separately, it would still receive 80 votes. If B were removed and voted upon separately, it would only command 40 votes. The original supporters of B would still vote for it, but those who only supported B as a way to get C would not, since in direct democracy there is no way to coordinate their votes. The same would hold for C. D would also fail to receive majority support. The test would accurately identify B, C, and D as being either logrolled provisions or riders and invalidate them. It would retain A, the independently popular provision.
178. One of us has written separately on the application of the single subject rule to ordinary legislation. See Gilbert, Single Subject, supra note 8, at 809 ("[Logrolling] always leaves a majority of legislators better off, though it may cause severe harm to a minority. . . . [R]iding always leaves a majority of legislators worse off, though it may yield a significant benefit to a minority."). The framework provided in that paper, which exempts logrolling from the practices forbidden by the single subject rule, could also be used for statutory referenda.
179. See Miller, Courts as Watchdogs, supra note 24, at 1081-83 (providing examples showing "several initiative states" are moving in this direction).
180. See id. (discussing Oregon and Montana separate vote requirements).
181. See, e.g., Strauss v. Horton, 207 P.3d 48, 110 (Cal. 2009) (holding Proposition 8, which provides that "[o]nly marriage between a man and a woman is valid" in California, to be constitutional because it is "a constitutional amendment rather than a constitutional revision").
182. k are complements.
183. 1, then these policy proposals are either strong substitutes, in which case he only supports one if he is certain not to get the other, or strong complements, in which case he only supports one if he is certain also to get the other.