This LA Times article from Saturday had the following subhead: “Lucrative new sources from across the U.S. would help fund a fight over California’s voting districts and pension system, he says.”
- The whole idea of trying to prevent this sort of packaging troubles me. I fully understand the logic of the “single-subject” requirement, like not tying the sale of state property to the regulation of the primary-election process, for example. But, first of all, are term limits and redistricting really “separate subjects”? Both concern how we elect legislators. Term limits advocates claimed term limits would increase competitiveness, and proponents of non-partisan redistricting claim the same. The former has been shown via academic research largely to have failed, though in the presence of districts drawn by nonpartisans, it might very well work out as intended. This question would seem to be separable from the specific length of the term limits, which might have to be adjusted (as a matter of political practicality) in order to bring about the overall public good of more competitiveness. Now I can see that taking back one component (i.e. lengthening term limits) to get the other is a logroll, and the purpose of the single-subject requirement is essentially to prevent logrolls.
There just is a real problem with that logic. If you can’t link A and B, often you get neither. You just get the status quo. I won’t give you A if you won’t give me B.
I have the same trouble with item vetoes. I think–though I am unaware of empirical confirmation–that item vetoes do not really make the executive more powerful (as is often assumed). I think they simply make the status quo safer.
I am no fan of direct democracy, but please tell me we have not so restrained it judicially that the status quo trumps any chance politically for a potentially rather large majority to approve a package of reforms to the election process.
John Gear writes:
- Michigan is suffering terribly from the twin scourges of expert partisan redistricting and stiff term limits. Because the first is so bad, the reaction was the second — so now we have the worst of all worlds … the winners of virtually all races are decided in primaries where, 9 times out of 10, the most extreme candidate wins.
(The exception proves the rule: pro-choice GOP Rep. Joe Schwartz, new member of Congress, “won” his primary with 28% of the vote, with all six “Stop Joe” opponents foolishly splitting the vote rather than deferring to one another. A perfect case for the use of instant runoff voting, but an example of how dysfunctional the system is … the winner was opposed by 72% of his own party but, thanks to bulletproof gerrymandering, was unstoppable once nominated.)
The state overall leans D but the US House delegation is 9-6 R-D, and both state houses are R dominated, tribute to the skill of the gerrymander artists.
However, for just one example of the bizarre consequences, the Speaker of the House is a 34 year old with two years legislative experience. The folks in Lansing are chafing under term limits, but they are finding that they are still insanely popular (with the Rs finding that the monster they created was easier to unleash when the Ds had long been in control than it is to get back under control).
My thinking has been that there is only one subject here: competitive elections. Term limits were a ham-handed and wrongheaded approach — but they were devised in response to a very real problem (totally uncompetitive elections that verge on fraudulent).
I would (and am) arguing that the only way to get people to agree on backing off from term limits is to ensure that we don’t get a return to the status quo of soviet-style elections with 99% incumbent reelection rates, and that is only possible by taking control of redistricting away from the legislature. They may not be one subject in a law school text but they are absolutely a single subject (competitiveness in elections) in the real world.
Thanks for writing!
Following up on this post, a few readers have e-mailed to ask whether (or argue against the idea that) the separate vote requirement would bar two legislative constitutional amendments, subject to separate votes by the people, but that each provides that neither amendment becomes effective unless they both become effective. (This apparently was how Propositions 57 and 58 were structured. There was no separate vote challenge then, and in any case the analysis might be different because 57 was not a constitutional amendment.)
There’s no law on this (in California, at least), but I think an argument can be made that such linking still violates the separate vote requirement (at least as I understand the requirement). If the separate vote requirement’s purpose (or one of its purposes) is to prevent the Legislature from adding sweeteners or packaging “good” amendments to get “bad” amendments passed, then a court could say that the linking strategy is an impermissible end run around the requirement. It is true that the “bad” measure would be more salient, because it is presented to voters separately. But it still can coerce voters to vote for bad to get good. For example, suppose I love redistricting reform but hate loosening term limits. Or I love loosening term limits but hate redistricting reform. There are likely to be lots of Republicans in category 1 and lots of Democrats in category 2. The ads for the two amendments will say vote yes on both, and someone who really supports one may feel coerced to vote for the other, the very evil the separate vote requirement was arguably included to prevent.
The Seattle Times offers this report.
You can find it here.
Abner Greene has posted Is There a First Amendment Defense for Bush v. Gore? (forthcoming, Notre Dame Law Review) on SSRN. The abstract:
- The Supreme Court’s ruling in Bush v. Gore attracted an enormous outpouring of critical response. But there is a defense for the merits holding of Bush v. Gore that has not received adequate attention. In a well-established line of free speech and press cases, the Court has insisted that state law carefully circumscribe the discretion of local officials to pass on applications for parade permits and the like. The “Lovell doctrine,” named after the first case in this line, permits facial challenges to such laws, to ward off the risk of administrative bias that might be too difficult to show on a case by case basis. Similarly, the Florida statutory provisions asking local county officials to determine “voter intent” when manually recounting ballots may be thought to vest too much discretion in officials who are highly subject to the tugs of partisan political connections. Just as rights of political participation are at stake in the Lovell doctrine cases, so were they at stake in the 2000 presidential election, whether seen as the rights of the candidates or the voters. This Article develops the analogy between the Lovell doctrine and the Florida election law that the Court confronted in Bush v. Gore. It provides a detailed account of the Lovell line cases and a critique of the scholarship in the area. It builds a prima facie case for importing the Lovell doctrine into the election law setting, and responds to several objections to so doing. It also responds to two challenges raised by Justice Stevens in his Bush v. Gore dissent, both involving the possibility that objective ballot counting rules could have been set and applied in a disinterested fashion by state judges. If we accept the application of this long line of First Amendment caselaw to the setting of ballot counting, then we can read Bush v. Gore as a narrow but powerful precedent, limiting the power that States may delegate to local officials to determine what counts as a vote, but not extending to other, mechanical differences that might exist within a State.
The Sacramento Bee offers this report.
The Sacramento Bee reports that a member of the California state assembly is proposing to place redistricting reform and a loosening of term limits together as a package to be adopted by voters in a special election in California in 2005.
I have serious doubts that combining both proposals in a single proposed constitutional amendment is permissible under the California Constitution. Although legislatively proposed constitutional amendments are not covered by the “single subject” rule, they are covered by the “separate vote” requirement. I looked into that requirement (including its original 1849 adoption) as a member of the Proposition 62 legal team challenging the placement on the ballot of Proposition 60, which was to enshrine party primaries andto require the state to sell certain surplus property. I believe the separate vote requirement bars the legislature from placing two distinct constitutional changes (particularly measures that would amend different provisions of the California Constitution) in a single proposed amendment. Although Proposition 62 was defeated at the polls, litigation over Proposition 60 and the separate vote requirement is pending at the California Supreme Court.
On the topic of redistricting reform, this PPIC Survey (see question 30, page 24) includes the following question:
- 30. A legislative redistricting reform measure that requires
an independent panel of three retired judges, instead of
the state legislature and governor, to adopt a new
redistricting plan. Would you vote yes or no?
15 don’t know
Finally, Joshua Spivak offers this oped in the Los Angeles Daily Journal (paid subscription required) supporting redistricting reform.
I have complained for some time about how difficult it is to use the FEC’s website. I was therefore happy to learn of this page on the site, “Selected Recent and Ongoing Litigation.” Good to know.
I have received both challengers’ briefs. The Henderson brief is too large to post.
Here is the Woocher brief. I will post other briefs if I receive them and they are not too large.
The Seattle Times offers this report.
Roll Call offers this short article (paid subscription required) on the latest efforts to get D.C. residents the right to vote for a congressional representative.
The Sacramento Bee offers this report.