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How Much Is Too Much in a Bill or Amendment?

A recent New Mexico Supreme Court opinion highlights how single-subject rule decisions in many states give legislators and courts little guidance.


The constitutions of 43 states theoretically prevent legislators from passing unpopular laws or constitutional amendments by attaching them to unrelated, more popular, proposals. These “single-subject rules” come in different forms but share a common purpose: bringing greater transparency to the legislative process and more informed democratic participation. 

In the context of proposed constitutional amendments, single-subject rules should prevent voters from having to decide whether their preference for one part of an amendment justifies an affirmative vote despite their opposition to another part of the amendment. For example, a single-subject rule would prevent voters from having to decide between an amendment that imposes a term limit on the governor while doubling the size of the legislature. Such an amendment would likely prevent voters from “fully and accurately” expressing their will on those distinct issues, as the New Mexico Supreme Court put it in a recent case.   

But challenges to amendments based on a state constitution’s single-subject rule are rarely so clear-cut. Would an amendment regulating apples and oranges constitute a single subject? One obvious response would be that you can’t compare apples to oranges — they must be different subjects. However, a higher level of abstraction could reach the opposite conclusion — both apples and oranges are fruits, so they must be the same subject.

As a result, the purpose of single-subject rules has been frustrated by state supreme courts struggling with how to interpret what constitutes one “subject.” These tricky interpretative questions often have substantial consequences. As pointed out by Columbia Law School professor Richard Briffault, many of the hundreds of single-subject rule cases brought in recent years have included “controversial, hot-button issues,” including but not limited to abortion, immigration, and minimum wage laws. 

The New Mexico Supreme Court’s April decision in Indigenous Lifeways v. N.M. Compilation Commission Advisory Committee illustrates why single-subject jurisprudence deserves attention and rethinking. 

In Indigenous Lifeways, the court resolved whether Amendment 1 on the 2020 general election ballot was void because it violated the constitution’s mandate that “if two or more [constitutional] amendments are initiated by the legislature, they shall be so submitted as to enable the electors to vote on each of them separately.” The amendment included several provisions related to the Public Regulation Commission, including changing the method of selecting commission members from district-based elections to appointment by the governor, reducing the number of commissioners, amending provisions related to the removal and qualifications of commissioners, and refining the scope of the commission’s responsibilities.

According to the court, “Amendment 1 was subject to widespread scrutiny and debate before the election.” Ultimately, 56 percent of voters supported Amendment 1. 

Soon after the election, three nonprofit organizations representing the rights of Native Americans petitioned the court to void the amendment under the constitution’s single-subject rule. Petitioners questioned whether an amendment altering the selection mechanism of commissioners could constitute a single subject when combined with provisions related to the commission’s responsibilities.

The court unanimously rejected the petition, pointing to New Mexico precedent that an amendment will be upheld as valid “if all the subjects or items of change contained in the amendment are germane to one general object or purpose.” The court reasoned that the changes in Amendment 1 met this standard and analogized its contents to a similar case in which the court declined to invalidate an amendment that made multiple changes to the selection, retention, and qualifications of public officials.

Whether a similar amendment would survive a single-subject challenge in another court is unclear. There’s a lack of uniformity in the tests applied by state courts. For instance, the Utah Supreme Court acknowledged that “[t]here is no constitutional restriction as to the scope or magnitude of the single subject of a legislative act.” Briffault’s review of the tests applied by different state supreme courts revealed a number of different tests — such as whether the parts of a single bill are “rationally related,” share a “unifying principle,” or “relate, directly or indirectly, to the same general subject and have a mutual connection.” 

Adding to the lack of clarity and uniformity, some courts struggle to consistently apply their test. As summarized by Briffault, the Oklahoma Supreme Court “invalidated a law authorizing a single state agency to incur debt to finance three different projects, and then a few years later upheld a law authorizing a different state agency to issue bonds to finance four different projects — both times without dissent.”

The upshot is that the New Mexico Supreme Court is not alone in relying extensively on the facts underlying a single-subject dispute rather than on a clear, broadly applicable interpretative framework. Though state courts vary in the level of deference paid to legislative action, they collectively have yet to determine how best to distinguish the undemocratic combination of disparate provisions into a single act — known as “logrolling” — from the sort of dealmaking and compromise that characterize deliberative bodies. 

Former Oregon Supreme Court Justice Hans Linde wrote that the only way to end the status quo, which he described as “continual case-by-case decisions under standards so meaningless that it is difficult to avoid ad hoc . . . reactions to the merits of individual measures,” is to either replace the single-subject rule or supplement it with a “formula that sets out some concrete goals or operational directives.” In particular, Linde called on courts to rely on the intended purpose of single-subject rules — to limit the combination of individually unpopular provisions into a broader package likely to win majority support and to “avoid misunderstanding and concealment of the contents of an act” — in their application of single-subject rules. So far, though, state courts have refrained from fully adopting the interpretative approach advocated for by Linde.

Whether courts will soon heed the former justice’s call for reforming single-subject jurisprudence remains to be determined. However, the New Mexico Supreme Court’s recent decision suggests that indeterminacy continues to define this area of state constitutional law.

In the void left by state courts, there’s room for the legal community to advance new interpretations of single-subject rules via legal scholarship or even clarifying legislation or amendments. This engagement is all the more necessary given the stakes — left unenforced, undemocratic efforts to push through unpopular proposals may go unchecked by state courts hesitant to enforce an inadequately defined single-subject rule.

Kevin Frazier will join the Benjamin L. Crump College of Law at St. Thomas University as an assistant professor in the next academic year. He currently serves as a clerk on the Montana Supreme Court.  

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