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Voter Confusion and the Single-Subject Rule: Prop. 26 as a Test-Case-in-Waiting, Part One in a Two-Part Series

By CHRIS ELMENDORF
Thursday, December 16, 2010

In 1948, the people of California amended their constitution to establish a "single-subject rule" for constitutional amendments enacted by ballot initiative. Writing in the official ballot pamphlet, proponents argued that "[t]he busy voter does not have the time to devote to the study of long, wordy propositions and must rely upon such sketchy information as may be received through the press, radio, or picked up in general conversation."

The single-subject rule was necessary, proponents said, lest voters "be misled as to the over-all effect of [a] proposed amendment" by "improper emphasis . . . placed upon one feature . . . ."

Last month, the people of California narrowly adopted little-noticed Proposition 26, an initiated constitutional amendment whose fate will tell us much about whether the original, animating purpose of California's single-subject rule lives on today.

The Effect of Proposition 26

Prop. 26 does two things. First, it reclassifies many so-called regulatory fees as taxes, bringing them within the coverage of California's legendary Proposition 13 (which established supermajority-vote requirements for state and some local tax increases) and Proposition 218 (which established referendum and supermajority requirements for many local taxes).

Second, Prop. 26 changes the trigger for the supermajority/referendum requirement. Previously, a tax bill only faced this hurdle if it would result in a net increase in government revenues. Prop. 26 specifies, however, that a bill that increases taxes on even a single taxpayer must clear the hurdle, whatever its net effect.

So does Proposition 26 have two "subjects" or one? The standard doctrinal test for single-subject violations holds that a challenged initiative is permissible only if "all of its parts are reasonably germane to each other, and to the general purpose or object of the initiative."

If the courts may infer a "general purpose or object" from the substance of the measure, then Prop. 26 should pass this test with ease. Both of its parts cohere with the common purpose of protecting the reliance interests that some taxpayers may have in not being burdened with additional fiscal obligations to the state.

Yet this was not the purpose sold to the electorate, or stated in the proposition's "Findings and Declarations of Purpose." Prop. 26 was plainly and simply marketed as a loophole-closing measure, one which would stop politicians from evading Prop. 13 with revenue measures labeled "fees."

Not once does the proponents' argument in the ballot pamphlet even mention the new trigger for supermajority and referendum votes ("higher taxes on anyone, regardless of net revenue effects"). In all likelihood, the vast majority of Californians who voted "Yes" on Prop. 26 had no idea they were changing the trigger. And, importantly, they might well have reconsidered their vote had they understood it.

Conservatives should hate the new trigger because it subjects revenue-reducing and revenue-neutral bills to the supermajority/referendum requirement (insofar as the bill raises taxes on anyone). This will make it harder to reduce the overall size of government and to substitute new sources of revenue for the most incentive-destroying taxes presently found in the code.

Liberals should hate the new trigger because it makes it harder to achieve their public health, safety, and environmental goals (by replacing existing taxes with fees on pollution and unhealthful products).

And voters in the middle should hate the new trigger because they are the likely beneficiaries of any legislation that reallocates burdens across taxpayers without increasing taxes overall.

The only interests that stand to benefit from the new trigger are the oil, tobacco, and alcohol groups that funded the "Yes on 26" campaign. If the single-subject rule aims to thwart the bamboozlement of voters, Prop. 26 looks like a ripe target indeed.

In the remainder of this column, I'll assess the vulnerability of Prop. 26 under current law. In a companion piece to be published tomorrow, as Part Two in this series, I'll offer some doctrinal refinements that would better mesh California's single-subject jurisprudence with the purpose of the rule.

"Reasonably Germane" . . . to What?

As noted above, the California Supreme Court has implemented the single-subject requirement by assessing whether "all of the parts" of a challenged measure are "reasonably germane to each other, and to [the measure's] general purpose or object."

This test is conventionally lax. Dozens of initiatives were challenged unsuccessfully before, in Senate v. Jones (1999), the California Supreme Court finally vindicated a single-subject claim.

Jones, for present purposes, is less important for its holding than for what the Court said about voter confusion and how the Court conducted the reasonable-germaneness inquiry. Oddly enough, what the Jones Court said and what it did have strikingly different implications for Prop. 26.

Begin with voter confusion. Citing the 1948 ballot pamphlet, Jones explains that the "principal purpose of the [single-subject rule] was . . . to avoid confusion of either voters or petition signers and to prevent the subversion of the electorate's will." Jones then offers a lengthy and approving discussion of California Trial Lawyers Association v. Eu (1988), in which the intermediate court of appeals struck down a no-fault insurance proposition that included a suspiciously inconspicuous section. That section insulated the insurance industry against targeted campaign-finance regulations, and declared that legislators who receive lawful campaign contributions from insurers (among others) shall not be disqualified from participating in donor-affecting decisions.

Because there was neither a "reasonably discernable nexus between thestated object of the initiative[, lowering the cost of auto insurance,] and the campaign-finance and conflict-of-interest provisions," nor "any reference to those provisions in the initiative's ballot title and summary, or its statement of findings and purposes," the California Trial Lawyers Court concluded that the initiative at issue was an exemplar of "the potentially deceptive combination of unrelated provisions at which the [single-subject rule] is aimed."

Though it lauds California Trial Lawyers, Jones leaves some doubt about whether the "purpose" that grounds the reasonable germaneness inquiry must be the same purpose that the measure's proponents represented to the voting public. Jones evaluates the challenged initiative in terms of several hypothetical purposes advanced by proponents' lawyers, without stopping to consider which purposes actually informed voters' understanding of the proposition. In leading cases upholding ballot initiatives against single-subject challenges, however, the California Supreme Court has relied on purposes stated in or readily inferable from the measure's title and ballot summary.

In light of that practice, and of Jones's celebration of California Trial Lawyers, it is entirely possible the discussion of hypothetical purposes in Jones served only to illustrate just how badly the challenged initiative ran afoul of the single-subject rule. But Jones does give defendants an opening to argue that single-subject challenges may be met and defeated by showing that the component parts of a proposition are reasonably germane to a hypothetical purpose. Under that test, a single-subject challenge to Prop. 26 would, as noted above, almost surely be a loser--subject to one important caveat.

A Separate Test for Voter Confusion?

The caveat is this: it's not settled that a finding of "reasonable germaneness" necessarily ends the single-subject inquiry. In several cases, the California Supreme Court has considered (and rejected on the merits) plaintiffs' voter-confusion arguments after having concluded that the germaneness test was satisfied.

These precedents give plaintiffs a doctrinal toehold to argue that irrespective of "reasonable germaneness," a single-subject violation may be found in certain cases where voters were substantially confused about an important subpart of the proposition.

Alas, what the California Supreme Court has actually said in response to voter-confusion arguments flies in the face of everything that political scientists now understand--and that proponents of the single-subject rule intuited back in 1948--about how ordinary citizens vote on ballot propositions.

In Manduley v. Superior Court (2002), for example, the majority stressed that an allegedly obscure and confusing subpart of the ballot initiative had been carefully explained in the legislative analyst's report found in the voter guide. "We must assume," the majority wrote, that "the voters duly considered and comprehended these materials."

Justice Carlos Moreno, concurring, challenged this assumption: "[W]hile it is to be hoped that voters carefully study their ballot guides, the realistic premise behind the single-subject rule is that many voters do not . . . ."

The Bottom Line

Where does this leave Proposition 26? On one hand, the story of Prop. 26 resembles in important respects the story of the proposition invalidated in California Trial Lawyers. Prop. 26 includes a peculiar provision (the new trigger for supermajority/referendum votes) that has no "reasonably discernable nexus" to the purpose declared in the text of the measure and represented by its proponents to the electorate (to wit, closing the "fee label" loophole). And, as in California Trial Lawyers, the secondary provision was not noted in the description of Prop. 26 on the ballot.

On the other hand, the history of single-subject adjudication in California has been a history of judicial laxity, and the courts certainly could impute a purpose to Prop. 26 that would encompass all of its provisions, or naively conclude that both the hidden and the overt components of Prop. 26 relate to the subject of "tax limitations."

As for the risk of voter confusion, the courts could say that this is not an independent basis for single-subject invalidation, or, if it is, that the legislative analyst's careful explanation of Prop. 26, coupled with Manduley's presumption that voters "duly consider and comprehend" the analyst's report, vitiates the plaintiffs' argument.

If I were a betting man, I'd bet against a single-subject challenge to Prop. 26. But by trade I'm a law professor, not a gambler--and I'm a professor who shares Justice Moreno's conviction that the single-subject jurisprudence has too often drifted from the original purpose of the single-subject rule.

So in my next column, Part Two in this series -- which will appear tomorrow on FindLaw -- I will offer some thoughts on how to make single-subject doctrine responsive to the risk of voter confusion, and what this implies for Prop. 26.


Chris Elmendorf is a professor of law at the University of California, Davis. A graduate of the Yale Law School and a former clerk to Judge Guido Calabresi, he writes principally on the subject of election law.

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