By Matthew Adler.
A High-Profile Case
As many Arizonans have probably heard, the Supreme Court of Arizona recently invalidated a large and highly publicized piece of legislation known as Senate Bill 1819. The case, Arizona School Boards Association v. State, made waves in both the legal and non-legal communities and is notable for several reasons. First, the invalidated legislation was politically controversial, addressing hot-button subjects such as mask mandates and voter fraud. Second, the Court was unanimous in holding the Republican-passed bill unconstitutional, which is significant given that all seven justices of the Supreme Court of Arizona were appointed by Republican governors. Third, the Court’s holding relied on a long-dormant constitutional provision, potentially heralding a revolution in the Court’s judicial-review jurisprudence.
The Single-Subject Rule
Although the Court’s opinion covered a variety of legal issues and addressed the constitutionality of four different bills on two different grounds, the portion of the opinion that will likely have the most far-reaching consequences is the Court’s application of the so-called single-subject rule to SB 1819. This rule, derived from Article 4, Part 2, Section 20 of the Arizona Constitution, essentially states that all new appropriations must be made in a bill that covers only one subject. In other words, if a bill contains new appropriations on two or more subjects, the bill is unconstitutional. While that rule sounds very simple in the abstract, it can be difficult in practice to determine whether two things are part of the same subject or different subjects.
Unfortunately, Arizona School Boards sheds little light on how the Court will draw such distinctions. That is because this case presents an especially egregious instance of a multi-subject appropriations bill. In the words of the Court, “SB 1819 contains fifty-two sections and spans approximately thirty distinct subjects, including matters ranging from dog racing, the lottery, voter registration, election integrity, the Governor’s emergency powers, the Board of Trustees’ duties and powers, the definition of ‘newspaper,’ political contributions, management of the state capital museum, and COVID-19.” Thus, the court had no trouble striking it down. It is important to note that the Court expressed no opinion on whether any of the provisions of SB 1819 were substantively unconstitutional. The Court held only that they could not be passed as a single bill.
The purpose of the single-subject rule is to prevent “log-rolling,” which is the practice of packaging numerous pieces of legislation together into a single bill in order to prevent the legislature from voting on each item separately. An unpopular legislative item that doesn’t stand a chance of passing on its own can nevertheless become law if it is bundled into a larger bill. The single-subject rule seeks to ensure that the legislature only enacts laws that enjoy the support of a legitimate majority.
The Separate-Amendment Rule
Though not a new rule, the single-subject rule has hitherto gone largely unenforced. While it remains to be seen whether the Court will continue to flex its muscles in its enforcement of the single-subject rule, it is worth speculating as to what that enforcement might look like. As previously noted, it is no simple task to determine whether complex legislation constitutes one subject or multiple subjects. Because the single-subject rule does not have a robust legal pedigree, one must look for a jurisprudential corollary to determine how the Court might go about drawing such distinctions. One possible source of guidance is the similar-but-distinct separate-amendment rule.
The separate-amendment rule is similar to the single-subject rule, but it applies in a different context and has received more substantial judicial development. The separate-amendment rule requires that proposed constitutional amendments contain only one subject when they are placed on the ballot for direct voter approval. If a constitutional amendment submitted directly to the electorate contains multiple subjects, it is void.
In determining whether a given constitutional amendment touches one subject or multiple, the Court has applied a two-pronged inquiry; the various provisions of the proposed amendment must be (1) topically related and (2) sufficiently interrelated. The first prong is essentially a smell test that asks whether all the provisions of the proposed amendment address what would be intuitively understood as a single subject. The second prong is more nuanced. It requires that all the provisions of the amendment form a logically cohesive whole such that the provisions should stand or fall together. In other words, the second prong is satisfied if it would be nonsensical to pass only part of the proposed amendment.
It seems likely that the Court will adopt the separate-amendment rule as a blueprint for the single-subject rule. Not only do the two rules do virtually the same thing, but they are also both aimed at preventing log-rolling. This is interesting, since the risk of log-rolling is likely less substantial in the direct democracy context given that citizen voters are not able to horse-trade and negotiate in the same way that legislators do. Nevertheless, it seems a safe bet that the Court will look to the separate amendment rule as guidance, if for no reason other than convenience. Therefore, expect to see the single-subject rule conceived of as a two-pronged test in future cases.
Other Recent Developments
The legislature must abide by the single-subject rule, and the electorate must abide by the separate-amendment rule when voting on constitutional amendments, but what about when the electorate is engaging in direct statutory democracy? Is there an analogous rule to the other two, perhaps known as the “separate-subject rule” to complete the trinity of terminological confusion? It turns out that the answer is “no.” There is currently no similar rule that governs the electorate’s adoption of statutes, but there might be soon. The Arizona legislature has referred a constitutional amendment to the electorate that would impose just such a rule. The voters will pronounce their judgment on the proposed rule come November. For now, let’s just hope that the referred amendment contains but one subject.