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Edward B. Foley
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Opinion and Analysis

Voter Initiatives and the Single-Subject Rule

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November 8, 2004

Ruth ColkerRuth Colker
Fellow, Election Law @ Moritz
Heck-Faust Memorial Chair in Constitutional Law
Moritz College of Law


Some state constitutions require that legislation and voter-initiated referendums comply with the "single-subject" rule. The purpose of this rule is to avoid the "grouping of unrelated legislative proposals." See generally Stephanie Hoffer & Travis McDade, Of Disunity and Logrolling: Ohio's One-Subject Rule and the Very Evils It Was Designed to Prevent, 51 CLEV. ST. L. REV. 557 (2004). New Jersey adopted such a rule in 1844; Ohio followed in 1851. Although there has not been a lot of litigation involving the single-subject rule, it may become an important issue in challenges to the same-sex marriage initiatives that were enacted on November 2, 2004.

A same-sex marriage initiative was enacted in Louisiana on September 18, 2004, but was struck down by a judge as violating that state's single-subject rule. See Forum for Equality PAC v. McKeithen, 2004 La. App. LEXIS 2407 (La. App. 1 Circuit Oct. 13, 2004) (related case). The Louisiana initiative stated: "that marriage in this state shall consist of the union of one man and one woman, the legal incidents of marriage shall not be conferred on a member of any union other than such union, and that the state shall not validate or recognize a legal status identical or substantially similar to that of marriage for unmarried individuals or any marriage contracted in any other jurisdiction that is not the union of one man and one woman." Article XII, Section 15. The successful plaintiff argued he would have liked to vote against same-sex marriage but in favor of same-sex civil union but that such a vote was not possible due to the complexity of the voter initiative. The case is currently on appeal to the Louisiana Supreme Court.

Like the Louisiana Constitution, the Ohio Constitution contains a single-subject rule. Under the Ohio Constitution, "no bill shall contain more than one subject, which shall be clearly expressed in its title." Ohio Constitution II, Sec. 15. This rule was used to strike down Ohio's school voucher program, see Simmons-Harris v. Goff, 86 Ohio St.3d 1, 711 N.E.2d 203 (1999) as well as Ohio's tort reform legislation, see State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 715 N.E.2d 1062 (1999).

The single-subject rule appears to apply to voter-enacted initiatives as well as regular legislation, because the Ohio Constitution states that "the limitations expressed in the constitution, on the power of the General Assembly to enact laws, shall be deemed limitations on the power of the people to enact laws." Ohio Constitution II, Sec. 1. Nonetheless, the Ohio same-sex marriage initiative was a constitutional amendment rather than mere legislation and it is not entirely clear whether the single-subject rule applies to voter-initiated constitutional amendments.

If the single-subject rule were found to apply to voter-initiated constitutional amendments, it might invalidate Ohio's same-sex marriage initiative. The Ohio initiative is similar in language to the Louisiana initiative. It provides: "Only a union between one man and one woman may be a marriage valid in or recognized by this state and its political subdivisions. This state and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage." Article XV, Section 11.

The argument that the Ohio initiative violates the single-subject rule would be that it regulates the subject of marriage and civil unions. The purpose of the Ohio single-subject rule is to avoid logrolling and riders that become law by being attached to a highly popular measure. In this case, banning same-sex marriage appears to be highly popular but banning same-sex civil unions appears to be much less popular. Even President Bush recently suggested that he was against same-sex marriage but had no intrinsic objection to same-sex civil unions. Hence, the advertisements in favor of the Ohio initiative only mentioned marriage and ignored the implications of the second sentence thereby arguably confusing voters into voting for the Ohio initiative even if they favored same-sex civil unions.

Legal challenges to the Louisiana and Ohio initiatives based on procedural irregularities are likely to continue in the months and years ahead. We will try to post those election law developments as they continue. 1

Notes

1. Although we also expect many of these initiatives to be challenged on substantive grounds, we will not directly follow those developments because they are beyond the scope of our election law website. Two lesbian couples, for example, have already challenged the Oklahoma initiative as violating the equal protection and due process rights of the plaintiffs by not allowing them to marry and by not recognizing civil unions performed elsewhere. See http://newsobserver.com/24hour/nation/story/1796191p-966495c.html