Kurt G. Kastorf, Logrolling Gets Logrolled: Same-sex Marriage, Direct Democracy, and the Single Subject Rule

• Jurisdiction: Georgia,United States
• Publication year: 2005
• Citation: Vol. 54 No. 4

COMMENTS

LOGROLLING GETS LOGROLLED: SAME-SEX MARRIAGE, DIRECT DEMOCRACY, AND THE SINGLE SUBJECT RULE

INTRODUCTION

During the 2004 election, Georgia was one of eleven states to allow voters to weigh in on whether its state constitution should exclude gays and lesbians from marriage.¹The drafters of the Georgia proposal, like those of Arkansas, Kentucky, Michigan, North Dakota, Ohio, Oklahoma, and Utah, went further than simply adopting a restrictive definition of marriage.²The proposed amendment also restricted couples in civil unions from obtaining any of the benefits of marriage, banned state courts from recognizing the judgments of other states, and carved out an exception to the Georgia court system's subject matter jurisdiction.³

The language of the proposed amendment posed an intractable problem for a significant minority of Georgia voters who supported restricting the definition of marriage but opposed excluding same-sex couples from all of the benefits afforded by civil unions.⁴These voters faced the difficult choice of either voting to adopt a provision they intensely opposed, or voting against a provision they strongly desired.⁵The Georgia constitution contains a provision-the single subject rule-designed to prevent this type of harm, but it proved impotent to enjoin the state from placing the initiative on the ballot.⁶

Single subject rules limit bills, referendums, and initiatives to one subject.⁷

Forty-two state constitutions have a single subject rule governing legislation.⁸

Most states that employ direct democracy⁹have a similar rule governing some aspects of direct legislation.¹⁰Because courts first addressed the single subject rule in the legislative context before applying it to direct democracy, they tended to adopt the tests for initiatives and referendums directly from their legislative analogues.¹¹

Several scholars have addressed single subject rules, discussing their origin,¹²purpose,¹³and interpretation.¹⁴Many discussions involve a normative component, arguing for policy options ranging from broad interpretation of the rule,¹⁵to adopting a stricter test for compliance,¹⁶to applying the rule to the U.S. Congress.¹⁷

Meanwhile, an even larger body of literature contrasts representative and direct democracy.¹⁸While scholars disagree as to the purpose,¹⁹effect,²⁰and efficacy²¹of plebiscites²²as an alternative to legislative bodies, they universally note significant differences between the operations of these two mechanisms of governance. It is thus significant that most literature reviewing application of the single subject rule only cursorily addresses the differing role the rule plays in the representative and direct democracy contexts.²³

This Comment uses the conflict over same-sex marriage to explain how structural differences between direct and representative democracy alter the effect of strict enforcement of the single subject rule. Part I describes the Georgia same-sex marriage amendment and demonstrates how the single subject rule has failed to achieve its historic purposes of preventing logrolling and reducing voter confusion. Georgia's experience will facilitate this Comment's examination of the single subject rule by serving as a recurring example of how logrolling and voter confusion operate in direct democracy.

Part II reviews the historical development and purpose of both single subject rules and direct democracy. The fact that states adopted single subject rules prior to the spread of direct democracy helps to explain why courts applied their tests for legislative compliance with the single subject rule to initiatives and referenda.

Part III analyzes the limitations of the analogy between representative and direct democracy. First, it argues that while logrolling produces a balance of benefits and costs in the legislature, logrolling predominantly incurs costs in direct democracy. Second, this Part examines the heightened possibility of voter confusion in plebiscites. Third, it considers how structural differences between representative and direct democracy alter the role of the single subject rule. Each inquiry suggests that an effective test for compliance with the single subject rule in the legislature may prove insufficient for direct democracy.

Part IV considers the effectiveness of the predominant test for compliance with the single subject rule-the reasonable germaneness test-which imposes a lax requirement of relatedness on drafters of legislation. It finds that the reasonable germaneness test performs well in the legislative context, but that direct democracy requires a stricter test more faithful to the historical goals of the single subject rule.

I. THE GEORGIA SAME-SEX MARRIAGE AMENDMENT

The single subject rule, applied in direct democracy, fails to serve its historical purpose. Georgia's same-sex marriage amendment demonstrates how interest groups can use popular initiatives to ensure the passage of controversial provisions.²⁴Although the drafters of the initiative engaged in logrolling and voter confusion, the Supreme Court of Georgia chose not to intervene in the election.²⁵Understanding Georgia's experience will therefore help to inform this Comment's subsequent discussion of how the single subject rule operates in direct democracy. ²⁶

On March 31, 2004, the Georgia General Assembly passed Senate

Resolution 595, which proposed a Constitutional Amendment providing that:

(a) This state shall recognize as marriage only the union of man and woman. Marriages between persons of the same sex are prohibited in this state.

(b) No union between persons of the same sex shall be recognized by this state as entitled to the benefits of marriage. This state shall not give effect to any public act, record, or judicial proceeding of any other state or jurisdiction. The courts of this state shall have no jurisdiction to grant a divorce or separate maintenance with respect to any such relationship or otherwise to consider or rule on any of the parties' respective rights arising as a result of or in connection with such relationship.²⁷

The ballot language provided for a yes/no vote on the following question:

Shall the Constitution be amended so as to provide that this state shall recognize as marriage only the union of man and woman?²⁸

The Georgia Constitution's single subject rule states that "[w]hen more than one amendment is submitted at the same time, they shall be so submitted as to enable the electors to vote on each amendment separately."²⁹The state's supreme court has offered two reasons for this rule. First, it seeks to prevent logrolling, defined as the practice of combining two or more dissimilar subjects into a single act to force simultaneous passage of the varied provisions.³⁰The court wrote that "the obvious purpose" of the single subject rule is "to prevent combinations by which different and distinct matters of proposed legislation are presented as one measure, whereby each of them gains strength and support which it would not have if it were presented solely upon its own merits and voted upon separately."³¹

Second, Georgia courts cite the reduction of voter confusion as a justification for the single subject rule.³²Georgia's heightened concern over voter confusion stems from the notorious Yazoo Act passed by the state legislature in 1795.³³The bill contained a deceptive title, duping legislators into directing the sale of a vast portion of Georgia's public land to a group of private companies.³⁴When the public discovered the sham, the resulting outrage led General James Jackson to demand that Georgia include a provision in its state constitution requiring that every bill contain a clear title accurately reflecting the subject matter of the legislation.³⁵The court has since read this concern into the single subject rule as well.³⁶

The drafters of the Georgia marriage amendment employed both logrolling and voter confusion. The amendment employs logrolling because many citizens of Georgia support one major component of the amendment, but oppose others. Polling data demonstrates that Georgians overwhelmingly support restricting the definition of marriage, but are split evenly over civil unions.³⁷National polling data shows a similarly wide divergence on the two issues.³⁸For example, a CBS News/New York Times Poll indicated that while twenty-three percent of Americans support legal marriage for gay couples and forty-one percent oppose any legal recognition of a gay couple's relationship, more than one-third of all citizens fall in between those two extremes. This centrist group supports allowing gay couples to form civil unions but opposes their legal right to marry.³⁹

Thus, combining marriage and civil benefits in a single referendum constitutes logrolling.⁴⁰The Georgia Supreme Court described the undesirability of this forced choice in one of its earliest single subject rule decisions, writing that "[n]o voter should be compelled, in order to support a measure which he favors, to vote also for a wholly different one which his judgment disapproves, or, in order to vote against the proposition which he desires to defeat, to vote also against one which commends itself to the approval of his judgment."⁴¹

The wording of the amendment and accompanying ballot question also encouraged voter confusion.⁴²The drafters of the amendment referred only to the marriage restriction, the most popular component of the proposed amendment. ⁴³Voters who have not carefully read and analyzed the text of the proposition were therefore unlikely to be aware of the provisions they were most likely to oppose.⁴⁴

Judged according to the historical purposes of the single subject rule, the marriage amendment as drafted should have failed judicial review.⁴⁵However, the Supreme Court of Georgia has analogized the single subject rule governing constitutional amendments to the parallel requirement for legislative enactments.⁴⁶This analogy places two large hurdles in front of any attempt to challenge...