Chad M. Oldfather (Marquette University – Law School) has posted Single-Subject Rules and the Nature of State Judicial Power (2024 Wisconsin Law Review 1513[10.59015/wlr.PYDO9223]) on SSRN. Here is the abstract:
Many state constitutions include "single-subject" rules, which require legislation, ballot initiatives, and/or constitutional amendments to encompass only one subject. These rules are intended to facilitate informed decision-making by making it clear to voters what they are voting on, as well as to prohibit practices that leverage one measure's popularity to assist with the passage of another, such as logrolling and the inclusion of riders. Courts have struggled to enforce these rules, however, due largely to the inherent slipperiness of "subject" as a concept. Commentators have in turn questioned judicial intervention based largely on doubts about whether the rules can be implemented in a principled and consistent manner. This Essay focuses not on the nature of the rules but rather on the nature of the power wielded by the courts that implement them. It contends that objections to judicial enforcement of single-subject rules have implicitly assumed the federal judicial power as the standard against which to assess the practice, when in fact state judicial power-as to which, for one thing, the "countermajoritarian difficulty" often does not exist-may differ in ways that open the door to more aggressive judicial review. That posture may be especially appropriate for issues involving the political process, which is the case with single-subject rules. To be sure, as critics have suggested, aggressive review will often be ideologically inflected. In the context of single-subject challenges, ideology's influence is likely to be significant primarily in states with a closely divided government, and the fact of the close divide may make aggressive enforcement of single-subject rules less troubling than first meets the eye.