Single-Subject Rules Can Prevent Perverse Outcomes but Give Judges Enormous Power

A recent Missouri case illustrates how state constitutional single-subject clauses can be used to prevent perverse policy outcomes — while also raising questions about how such provisions might be used to limit key ballot initiatives this year.

In Byrd v. State, the Missouri Supreme Court struck down a bill that aimed to reduce the amount of information counties were required to disclose in financial statements. Nestled into the bill’s provisions was a section imposing restrictions on the allocation of state funds for combating homelessness and making it a misdemeanor to sleep and camp on state-owned lands without authorization. A Missouri nonprofit that provides housing assistance to homeless people, along with several Missouri taxpayers, sued the state, asking that the bill be declared invalid and the state enjoined from enforcing it. They alleged the bill violated the single-subject, clear title, and original purpose requirements of the Missouri Constitution.

Article 3, Section 23, of the Missouri Constitution states: “No bill shall contain more than one subject which shall be clearly expressed in its title.” As the Brennan Center has previously recognized, courts have adopted an array of approaches to interpret their single-subject clauses. According to the Missouri Supreme Court’s precedent, a bill does not violate the single-subject requirement so long as the matter is germane, connected, and congruous to the general “subject” of a bill. To apply this standard, the court takes a two-step approach. First, the court looks at the bill’s title to determine its subject. Second, the court considers the challenged provisions to determine whether they “relate to, have a natural connection with, or are a means to accomplish the subject of the bill as expressed in the title.”

Applying this test, the Missouri Supreme Court sided with the plaintiffs, reversing the lower court. Based on the bill’s title — “An act to repeal [eleven sections of the Revised Statutes of Missouri] and to enact in lieu thereof nine new sections relating to political subdivisions, with penalty provisions” — it held that the bill’s subject was “political subdivisions,” or counties. Then, the court determined the section pertaining to homelessness exceeded that subject because it had nothing to do with regulating political subdivisions.

After deciding the section on homelessness violated the state constitution’s single-subject clause, the court then faced the issue of whether the section could just be severed from the bill or whether the entire bill must be struck down. To sever only a section from the rest of a bill, the court must be convinced “beyond a reasonable doubt that the legislature would have passed the bill without the additional provisions” and that the provision is “not essential to the efficacy of the bill.” Based on the record, the court was not certain that the legislation would have passed absent the section in question. Accordingly, it invalidated the bill in its entirety.

What happened in Byrd is emblematic of the evil that single-subject clauses aim to prevent. There are two main justifications for single-subject clauses. First, they promote increased transparency and accountability in the legislative branch by providing better notice to legislators and the public of the contents of a bill. Second, and most importantly, they prevent “nefarious legislative practices” such as logrolling. Logrolling occurs when certain proposals lack majority support among legislators; those proposals are combined with more popular proposals that will be supported by a majority. Consequently, the less popular proposal gets passed with the popular proposal.

The Missouri legislature in Byrd logrolled a provision to criminalize homelessness along with several other banal provisions about financial reporting requirements for counties that a legislator would have been hard-pressed to oppose. If the legislature wants to criminalize homelessness going forward, it will have to do so openly, on its own merits, and in a completely separate piece of legislation. The optics of doing so are unpalatable enough that legislators might not want to do so. That can certainly be considered a victory of sorts.

Forty-three states have codified in their respective constitutions a single-subject clause that prohibits passing legislation that includes more than one “subject” or “object.” New Jersey’s 1844 constitution was the first to do so. Of the 43 states that have single-subject clauses, 41 apply the rule to all legislation. Forty states also contain a clear title requirement that mandates a bill’s subject to be expressly mentioned in the title of the proposed law. Sixteen of these states have also extended single-subject rules to ballot initiatives. If state residents can exercise legislative authority through a referendum process, it theoretically makes sense to apply the same constraints found in the regular legislative process.

These single-subject clauses might be some of the most potent weapons in state constitutions to challenge recent abortion bans. A single-subject clause was used to do just that in Burns v. Cline, a case decided by the Oklahoma Supreme Court before Dobbs v. Jackson Women’s Health Organization. The Oklahoma statute challenged in Burns established regulations of a minor’s ability to obtain an abortion, protocol for statutory rape convictions, inspections of abortion facilities, and criminal penalties for violating abortion statutes. The Oklahoma court viewed the statute with a narrow lens, holding that it addressed four distinct subjects: abortion access, the safety requirements during the performance of an abortion, the criminal justice system, and the prevention of rape. It therefore invalidated the entire legislation.

After Dobbs, several courts in states with strict abortion bans have rejected arguments that abortion is a fundamental right under their state constitutions. In doing so, courts have often relied on a stringent originalist reading of the rights provisions in question. However, that same focus on history and text when applied to single-subject clauses may make it difficult for state legislatures to pair provisions that an overwhelming majority of residents favor — like fighting rape — with provisions that have proven less popular — like restricting abortion access. The result, as Oklahoma demonstrated, could be the invalidation of some abortion restrictions. A judge unsympathetic to abortion rights because they take a narrow view of a declaration of rights may be more sympathetic to an argument that the constitution imposes narrow parameters on the legislature’s authority to craft legislation banning abortion.

Nevertheless, single-subject clauses potentially give judges enormous control over the lawmaking process, and this power comes with downsides. For example, in a complex modern society, the argument could be made that democratic bargaining requires the ability to cobble together seemingly disparate provisions to enable compromises. More importantly, while single-subject clauses may thwart legislation that a majority of the electorate doesn’t support, they also allow judges to thwart ballot initiatives that do command majority support. In particular, single-subject challenges have become part of a broader strategy to stem the tide of pro-choice victories in state constitutional referenda.

Last year, for example, Nevada residents petitioned to place a referendum on the ballot that would protect abortion access. A lower court held that the proposed amendment violated Nevada’s single-subject rule. As justification for its ruling, it at one point suggested that “abortion” and “abortion care” were different subjects. Under the court’s logic, the First Amendment to the U.S. Constitution would violate the single-subject rule by addressing separate “subjects” of “religious freedom” and “freedom of the press” together. Montana’s attorney general invoked similar logic this month to prevent (for the time being) residents from voting on a proposed amendment to the state constitution guaranteeing abortion access.

With a number of referenda on the ballot in 2024, there will likely be many more single-subject clause challenges regarding important issues. How the challenges unfold will determine in part how effective initiatives and referenda are as policymaking tools going forward. These important state constitution clauses may continue to both provide citizens with a tangible way to monitor the legislative processes and undermine their ability to work around a recalcitrant legislature.

Marcus Gadson is an assistant professor of law at Campbell University, where he teaches state constitutional law. 

Amanda Olejarz is a law student at Campbell University.