Subject: Single Subject Rule and Initiatives
From: "Lowenstein, Daniel" <lowenstein@law.ucla.edu>
Date: 6/15/2006, 5:45 PM
To: election-law@majordomo.lls.edu

 
        Thanks for posting this message.  Could you clarify the conclusion?  I should think an alleged single-subject violation would come under category 3.  What does the court mean when it says "limited pre-election review" is permitted?  Does it mean, pre-election review is available for category 3 only in the case of local initiatives?  If not, why would not review be available for a single-subject challenge to a statewide initiative?
 
 
          Best,
 
          Daniel Lowenstein
          UCLA Law School
          405 Hilgard
          Los Angeles, California 90095-1476
          310-825-5148

________________________________

From: owner-election-law_gl@majordomo.lls.edu on behalf of Even, Jeff (ATG)
Sent: Thu 6/15/2006 4:20 PM
To: election-law@majordomo.lls.edu
Subject: Single Subject Rule and Initiatives



Although I rarely contribute to discussions, but merely lurk attentively, I thought I would contribute one item to the discussion of the application of the single subject rule to initiatives and referendums.  The Washington Supreme Court opinion in Coppernoll v. Reed, 119 P.3d 318 (2005), which I argued on behalf of the Secretary of State), elaborates upon a longstanding Washington rule that prohibits pre-election challenges to the substance of initiatives.  The rule in Washington is that as a general proposition, lawsuits challenging the constitutionality of ballot measures (whether based on the single subject rule or any other theory) must await their actual enactment by the voters.  Lawsuits prior to the election seeking to bar a proposal from the ballot are generally not permitted.

The court divided pre-election challenges into three categories, borrowing from a law review article by James D. Gordon III and David B. Magleby:  "(1) the measure, if passed, would be substantively invalid because it conflicts with a federal or state constitutional . . . Provision; (2) the procedural requirements for placing the measure on the ballot have not been met; and (3) the subject matter is not proper for direct legislation."  Coppernoll, 119 P.3d at 321.  The court explained that the first type of challenge is not allowed before the election, but the second type is.  As to the third type, limited pre-election review is permitted, noting that such challenges usually arise as to local measures where the permissible subject matter of ballot measures may be more limited than it is at the statewide level.  

As a result, whatever one may think of the single subject rule, at least in this state an initiative or referendum may not be challenged on that basis until after the voters have enacted it.


Jeff Even 
Deputy Solicitor General 
Office of the Attorney General 
PO Box 40100 
Olympia, WA 98504-0100 
voice: (360) 586-0728 
fax: (360) 664-2963 
jeffe@atg.wa.gov