Image Credit: Matt Spence / Flickr
by Katherine Erickson
Ballot initiatives are a way for citizens to directly affect their governments. In a representative democracy, where our representatives are often swayed by special interests, the ballot initiative procedure at its best acts as an important way of maintaining some voter control of legislative enactments.
The ballot initiative procedure, however, is also vulnerable to corruption. Many states haves accordingly adopted anti-logrolling[1] rules, called “single subject” rules, to make sure that voters won’t be pressured into accepting bad amendments in order to pass good ones. In modern America, however, getting even a popular initiative on the ballot requires raising funds for professional signature-gathering—all of which is wasted if the ballot is ruled to violate the single-subject rule.[2] The Florida judicial definition of a “single subject” remains impenetrable, and thus presents a significant burden to majoritarian movements to change the law.
When there’s no clear application of the single subject rule in judicial review, we risk arbitrary results at best, and letting judges’ political opinions affect the political process at worst. This is the current situation in Florida, where the single-subject rule has been applied extremely strictly, sometimes ludicrously so.[3]
The single-subject rule of the Florida Constitution requires ballot initiatives amending the state constitution to have only one subject.[4] Florida’s judicial review of its ballot initiatives arguably results in the strictest national application of a single subject rule.[5] For example in Evans v. Firestone, the Florida Supreme Court found litigation costs were not “naturally related” to liability for damages, and hence their inclusion in the same ballot initiative language was found to constitute multiple subjects.[6]
Florida courts have used a wide variety of confusing approaches to determine whether the single-subject requirement has been met. One test is “natural relation and connection as component parts or aspects of a single dominant plan or scheme.”[7] The Florida Supreme Court views with disfavor the existence of a “discrete, severable” portion of the ballot language that reasonable voters might reject if it were presented independently.[8] The Florida Supreme Court also looks at the extent to which multiple provisions of the constitution would be impacted.[9]
In theory, the more constitutional provisions impacted, the less likely the court is to find that the initiative proposal contains a single subject.[10] The Florida Supreme Court has said that the mere fact that a proposal affects three different branches of government will not, in and of itself, invalidate an initiative,[11] but also that looking at the number of government functions impacted is important.[12] Couching diverse subjects within a “cloak of broad generality” is also supposed to be ineffective.[13]
It is questionable, however, how much guidance these rules actually give to drafters of ballot initiatives. Commentators are skeptical about the consistency of Florida Supreme Court decisions on the single-subject rule.[14] In Advisory Opinion to the Attorney General re Protect People from the Health Hazards of Second-Hand Smoke by Prohibiting Workplace Smoking, for example, the court upheld an amendment banning workplace smoking with a mandate for the legislature to enact statutes, including civil penalties and provisions for administrative enforcement.[15] These aspects were considered details of implementation, not separate subjects. Similarly, in Advisory Opinion to the Attorney General re Florida Transportation Initiative for Statewide High Speed Monorail, Fixed Guideway or Magnetic Levitation System, the court upheld an amendment requiring the legislature, the cabinet, and the governor to create an extensive transportation system using “efficient and effective technologies.”[16] The court also upheld an amendment promoting a “comprehensive plan for the education of youth about the health hazards related to tobacco,” including “advertising, school curricula, and law enforcement,” saying that “all of these components are related to the single unifying purpose.”[17]
Meanwhile, the court struck down an amendment to create a trust fund to restore the Everglades, which would have financed the fund via a tax on the sugar industry. The court held that the amendment violated the single-subject provision, supposedly because it included the legislative function of imposing a levy, the executive function of authorizing trustees to administer a trust, and the judicial function of rendering judgment of wrongdoing and de facto liability on the sugar industry.[18] Then there was Advisory Opinion to the Attorney General re Amendment to Bar Government from Treating People Differently Based on Race in Public Education, which involved four proposed amendments limiting affirmative action. The court threw out these amendments because, it said, they applied to multiple sections of the state constitution, not just Art. I § 2, and because of the application to all three branches of government.[19] It has been argued that the analysis in this case was inconsistent and “even intellectually dishonest.”[20] Similarly, in Advisory Opinion to the Attorney General re Requirement for Adequate Public Education Funding, the court struck down an initiative because it required the legislature to appropriate 40% of its revenues for public education, supposedly because it affected multiple functions and branches of the government.[21]
As Rachael Downey puts it, “If one gets the sense that the Government Treating People Differently and Adequate Public Education Funding initiatives were significantly simpler than, for example, the amendments involved in Prohibiting Workplace Smoking and High Speed Monorail, then one may think that the Florida Supreme Court is making political decisions rather than simply applying the single subject rule of article XI, section 3 in a straightforward manner.”[22] She hastens to add that “many proposed amendments have been approved, some of them controversial or bizarre, so it is not impossible to get such an initiative approved as in compliance with the single subject rule in Florida.”[23]
The bottom line, however, is that Florida is currently an incredibly unpredictable place to draft a citizen’s ballot initiative. Everyday citizens should not need to hire a team of specialized lawyers in order to pass a basic ordinance with a plan to pay for it, and collect hundreds and thousands of signatures on a petition to get their initiative on the ballot, only to have their initiative struck from the ballot by a capricious judiciary. It almost does not matter what rule the Florida Supreme Court adopts next, as long as it is more consistent than the current situation. The long and short of it is that Florida should stop interpreting the single subject rule so tightly as to squeeze out democracy.
[1] Logrolling is “the practice of combining two or more dissimilar subjects into a single act to force simultaneous passage of the varied provisions.” Kurt G. Kastorf, Logrolling Gets Logrolled: Same-Sex Marriage, Direct Democracy, and the Single Subject Rule, 54 Emory L.J. 1633, 1637 (2005).
[2] Thomas Rutherford, The People Drunk or the People Sober? Direct Democracy Meets the Supreme Court of Florida, 15 St. Thomas L. Rev. 61, 70 (2002).
[3] Id. at 176 (“It is not contended that the foregoing criticisms of the Court’s opinion on the [anti-discrimination] omnibus petition [involving ten categories of protected groups] are so overwhelming as to make indefensible its finding of multiple subjects. It was uncertainty about this that caused [the initiative-supporting] FCRI to develop its fallback position, the three mini-petitions. As to them, there is no such uncertainty. The case for single-subject treatment of each mini-petition is overwhelming and the Court’s conclusion to the contrary is indefensible.”) (emphasis added).
[4] Fla. Const. art. XI, § 3 (“The power to propose the revision or amendment of any portion or portions of this constitution by initiative is reserved to the people, provided that, any such revision or amendment, except for those limiting the power of government to raise revenue, shall embrace but one subject and matter directly connected therewith.”).
[5] Kastorf, supra note 1, at 1669.
[6] Robert W. Lee, Pre-Election Initiative Review in Florida: A Framework for Analysis, Fla. B.J., March 1995, at 14, 16.
[7] Id.
[8] Id. See, e.g., Advisory Op. to Attorney Gen.—Ltd. Political Terms in Certain Elective Offices, 592 So. 2d 225, 231-32 (Fla. 1991).
[9] Lee, supra note 6, at 14, 18.
[10] Id.
[11] Advisory Op. to Attorney Gen.—Ltd. Political Terms in Certain Elective Offices, 592 So. 2d 225, 227 (Fla. 1991) (“Although the proposed amendment affects officeholders in three different branches of government, that fact alone is not sufficient to invalidate the proposed amendment. We have found proposed amendments to meet the single-subject requirement even though they affected multiple branches of government.”).
[12] Evans v. Firestone, 457 So. 2d 1351, 1354 (Fla. 1984) (“In Fine, we found multiplicity of subject matter because the proposed amendment would have affected several legislative functions.”).
[13] See, e.g., Evans v. Firestone, 457 So. at 1353-54 (finding more than a single subject in an initiative which would have modified the concept of joint and several liability, limited certain types of damages, and made the summary judgment rule a part of the state constitution, because it affected both legislative and judicial functions).
[14] Rachael Downey, Michelle Hargrove, & Vanessa Locklin, A Survey of the Single Subject Rule As Applied to Statewide Initiatives, 13 J. Contemp. Legal Issues 579, 593 (2004). See, e.g., Advisory Op. to Attorney Gen. re Florida Marriage Prot. Amendment, 926 So. 2d 1229, 1234 (Fla. 2006) (dismissing opponents’ claims that proposed amendment would ban both gay marriage and civil unions, and thus violated the single-subject rule). Many LGBT rights activists would be delighted to hear that gay marriage is equivalent to civil unions, and that thus all civil union states are also marriage states.
[15] Advisory Op. to Attorney Gen. re Protect People from the Health Hazards of Second-Hand Smoke, 814 So. 2d 415 (Fla. 2002) (“In the next regular legislative session occurring after voter approval of this amendment, the Florida Legislature shall adopt legislation to implement this amendment in a manner consistent with its broad purpose and stated terms, and having an effective date no later than July 1 of the year following voter approval. Such legislation shall include, without limitation, civil penalties for violations of this section; provisions for administrative enforcement; and the requirement and authorization of agency rules for implementation and enforcement.”).
[16] Advisory Op. to Attorney Gen. ex rel. Fla. Transp. Initiative for Statewide High Speed Monorail, Fixed Guideway or Magnetic Levitation Sys., 769 So. 2d 367 (Fla. 2000) (“The only subject embraced in the proposed amendment is whether the people of this State want to include a provision in their Constitution mandating that the government build a high speed ground transportation system.”).
[17] Advisory Op. to the Atty. Gen. re: Protect People, Especially Youth, from Addiction, Disease, & Other Health Hazards of Using Tobacco, 926 So. 2d 1186, 1191-92 (Fla. 2006).
[18] In re Advisory Opinion to the Attorney Gen.-Save Our Everglades, 636 So. 2d 1336, 1340 (Fla. 1994).
[19] Advisory Op. to Attorney Gen. ex rel. Amendment to Bar Gov’t from Treating People Differently Based on Race in Pub. Educ., 778 So. 2d 888 (Fla. 2000).
[20] Rutherford, supra note 2, at 66.
[21] Advisory Op. to the Attorney Gen. re Requirement for Adequate Pub. Educ. Funding, 703 So. 2d 446 (Fla. 1997).
[22] Downey, Hargrove & Locklin, supra note 14, at 596.
[23] Id.
N.Y.U. Review of Law and Social Change 