Michael D. Gilbert

A Theory of Direct Democracy and the Single Subject Rule

Citizens in many states use direct democracy to make laws on everything from soda bottles and horsemeat to affirmative action and same-sex marriage. Does direct democracy save citizens from corrupt legislators, or does it enfeeble competent representatives and empower an ignorant crowd? These ideological extremes often collide in court over a technical rule - the single subject rule - that limits each ballot initiative to one “subject.” Opponents can invalidate an initiative by convincing a court that it contains two different subjects (say, marriage and domestic partnerships), while proponents can preserve it by showing that it contains only one subject (say, same-sex unions).Despite hundreds of cases, including recent challenges to initiatives on same-sex marriage, illegal immigration, eminent domain, and taxes on oil profits, judges and scholars have been unable to define a “subject” with precision. This has led to inconsistent case outcomes, accusations of judicial activism, calls to repeal the rule, and anxiety among judges who must decide inflammatory issues by applying an undefined concept.Judges and scholars will never find a legal definition of “subject” by focusing exclusively on logic and language. Instead, the definition must be drawn from political theory. In the legislature, representatives of the citizens can bargain with each other, allowing compromise among groups that disagree politically. In contrast, hundreds of thousands of unorganized voters must accept or reject initiatives as presented to them. Those voters cannot bargain among themselves, but they can override legislative bargains that serve special interests. This political vision exposes the true justification for the single subject rule: to empower the majority on issues where there is one, and to channel bargaining and compromise into the legislature where it belongs.This “democratic process theory” leads to a precise, operational interpretation of the single subject rule. The interpretation focuses on whether voters can make independent judgments about components of a challenged initiative. When opponents contend that an initiative contains two components in violation of the rule, the court should ask whether voters’ support hinges on whether the other component becomes law – then the voters need to decide simultaneously. To allow them to do so, the court should find that the initiative contains one subject. According to the democratic process theory, separability of issues in the minds of voters implies an obligation to separate on the ballot, and inseparability in the minds of voters implies permission to combine on the ballot. The democratic process test for a single subject empowers the citizens on issues where there is a clear majority and empowers the legislature on issues that require compromise, just as the rule - and direct democracy itself - were designed to do.

Does Law Matter? Theory and Evidence from Single-Subject Adjudication

Empirical studies have examined the effects of law and politics on judicial decision making, but many legal scholars are dissatisfied with how these studies account for law. This paper provides a novel survey technique for measuring law. I demonstrate this technique by examining judicial decision making in cases involving the single-subject rule. The rule limits ballot propositions to one “subject,” a standard that vests judges with some discretion. Measures of law developed with the surveys strongly predict judges’ votes in single-subject cases. Moving from the proposition in the sample with the lowest subject count to the one with the highest is associated with a 78-percentage-point increase in the likelihood of a judge finding a violation of the rule. Measures of ideology also predict judges’ votes, especially when propositions are politically salient and when the law is indeterminate.

Disclosure, Credibility, and Speech

Conventional wisdom, embraced by judges and scholars alike, holds that mandatory disclosure chills political speech. That must be right for some actors. Disclosure imposes costs on speech, and that will lead some speakers on the cost-benefit margin to remain silent. However, the conventional wisdom may be wrong at the aggregate level. If you raise the price of a lottery ticket and increase the odds of winning, you might sell more tickets. By the same logic, if disclosure raises the price of speech and also reveals – or induces – better odds of getting a favorable outcome, speakers might engage in more speech. Disclosure might reveal or induce those better odds by uncovering information about politicians’ credibility. I explain why and consider legal implications.

Less Can Be More: Conflicting Ballot Proposals and the Highest Vote Rule

This paper examines conflicting ballot proposals—two or more measures that run contrary to one another and that citizens vote on in the same election. Sometimes a majority votes in favor of more than one conflicting proposal, generating a legal impasse that courts resolve by applying the “highest vote rule.” The rule upholds the proposal that received the greatest number of affirmative votes and invalidates all competing proposals, even though they also garnered majority support. Using spatial models, we show that the proposal receiving the most votes is not systematically closest to the median voter’s ideal point, and consequently the rule can generate antimajoritarian outcomes. We discuss the implications of our finding, analyze and reject existing alternatives to the highest vote rule, and propose an original solution to the problem.