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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kevin Meyer, Lieutenant Governor of the State of Alaska and State of Alaska, Division of Elections v. Alaskans for Better Elections (6/12/2020) sp-7460
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
KEVIN MEYER, LIEUTENANT )
GOVERNOR OF THE STATE OF ) Supreme Court No. S-17629
ALASKA and STATE OF ALASKA, )
DIVISION OF ELECTIONS, ) Superior Court No. 3AN-19-09704 CI
)
Appellants,
) O P I N I O N
)
v.
) No. 7460 - June 12, 2020
)
ALASKANS FOR BETTER )
ELECTIONS, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Yvonne Lamoureux, Judge.
Appearances: Margaret Paton Walsh and Laura Fox,
Assistant Attorneys General, Anchorage, and Kevin G.
Clarkson, Attorney General,Juneau, for Appellants. ScottM.
Kendall, Jahna M. Lindemuth, and Samuel G. Gottstein,
Holmes Weddle & Barcott, P.C., Anchorage, for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
WINFREE, Justice.
I. INTRODUCTION
The Alaska Constitution provides that all political power is inherent in
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1
Alaska's people and "founded upon their will only." The people may exercise this
political power in a number of ways. The people have the constitutional right to vote in
2 and "it is basic to our democratic society that the people be
any state or local election,
afforded the opportunity of expressing their will on the multitudinous issues which
confront them."3 As a corresponding check to the constitutional right to elect officials,
and a check on those elected officials' conduct, the people have the constitutional right
to petition to recall elected officials.4 And, as a check on legislative action or inaction,
the people have the constitutional rights to reject legislative acts by referendum and to
legislate directly by initiative.5 This appeal arises from the State's action limiting the
people's constitutional right to legislate directly by initiative.6
1 Alaska Const. art. I, § 2 ("All political power is inherent in the people. All
government originates with the people, is founded upon their will only, and is instituted
solely for the good of the people as a whole.").
2 Alaska Const. art. V, § 1 ("Every citizen of the United States who is at least
eighteen years of age, who meets registration residency requirements which may be
prescribed by law, and who is qualified to vote under this article, may vote in any state
or local election.").
3 Boucher v. Bomhoff, 495 P.2d 77, 78 (Alaska 1972).
4 Alaska Const. art. XI, § 8 ("All elected public officials in the State . . . are
subject to recall by the voters . . . .").
5 Alaska Const. art. XI, § 1 ("The people may propose and enact laws by the
initiative, and approve or reject acts of the legislature by the referendum."); see also
AS 15.45.010-.245 (restating constitutional initiative powers and providing procedures
for law-making by initiative).
6 We note "that, of the three branches of our state government, we are
entrusted with the 'constitutionally mandated duty to ensure compliance with the
provisions of the Alaska Constitution,' " a duty that "sometimes requires us to answer
constitutional questions surrounded by political disagreement." Wielechowski v. State,
(continued...)
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A proposed initiative instituting three substantive changes to Alaska's
election laws was submitted to the lieutenant governor for review, certification, and
7 Determining the initiative violated a constitutional
printing signature booklets.
8 the lieutenant
requirement that proposed initiative bills be confined to one subject,
governor denied certification.9 The initiative's sponsors filed a superior court action
challenging that decision.10 The superior court concluded, contrary to the lieutenant
6 (...continued)
403 P.3d 1141, 1142-43 (Alaska 2017) (quoting Malone v. Meekins, 650 P.2d 351, 356
(Alaska 1982)).
7 See Alaska Const. art. XI, § 2 ("An initiative or referendum is proposed by
an application containing the bill to be initiated or the act to be referred. The application
shall be signed by not less than one hundred qualified voters as sponsors, and shall be
filed with the lieutenant governor. If he finds it in proper form he shall so certify. Denial
of certification shall be subject to judicial review."), § 3 ("After certification of the
application, a petition containing a summary of the subject matter shall be prepared by
the lieutenant governor for circulation by the sponsors."); see also AS 15.45.030 (setting
out form of initiative application); AS 15.45.040 (setting out required form of proposed
initiative bill, including that it "shall be confined to one subject"); AS 15.45.070
(providing lieutenant governor shall review initiative and certify or notify initiative
committee of denial grounds); AS 15.45.080 (setting out bases for denying certification,
including if initiative bill is "not confined to one subject").
8 See Alaska Const. art. II, § 13 ("Every bill shall be confined to one subject
unless it is an appropriation bill or one codifying, revising, or rearranging existing
laws."); AS 15.45.040 (providing for form of proposed initiative bill, including that it
"shall be confined to one subject").
9 See Alaska Const. art. XI, § 2 (providing for certification of initiative
application if lieutenant governor "finds it in proper form"); AS 15.45.070 (providing
lieutenant governor shall review initiative and certify or notify initiative committee of
denial grounds).
10 See Alaska Const. art. XI, § 2 (providing that "[d]enial of certification shall
(continued...)
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governor, that the initiative's various provisions were confined to the single subject of
"election reform" and it accordingly should be certified; the court directed that the State
distribute petition booklets for the sponsors to collect signatures for placing the initiative
11
on a future election ballot.
The lieutenant governor and the State's elections office appeal the superior
court's decision. But because the court correctly adhered to our prior interpretation of
the relevant constitutional provisions - and because we reject the request to reverse
precedent that the people's power to initiate laws generally is equivalent to that of the
legislature - we affirm the court's decision.
II. CONSTITUTIONAL BACKDROP
A. Law-Making By Initiative
Understanding the one-subject rule's application to an initiative first
requires understanding the people's law-making power under the Alaska Constitution.
Article XI, section 1 provides in simple fashion: "The people may propose and enact
laws by the initiative, and approve or reject acts of the legislature by the referendum."
The constitutional convention delegates debated extensively whether to
include an initiative provision in the Alaska Constitution.12
Delegates recognized that
10 (...continued)
besubject tojudicialreview");AS15.45.240 (authorizing superiorcourtaction to review
lieutenant governor's determination).
11 See Alaska Const. art. XI, § 4 (stating procedures for initiative election);
see also AS 15.45.090 (regarding petition preparation); AS 15.45.110 (regarding
circulating petitions for signatures).
12 See 2 Proceedings oftheAlaskaConstitutional Convention(PACC)929-82
(Dec. 16, 1955); see also id. at 931-33, 960 (statements of Del. Warren Taylor describing
committee's research into initiative's history and other states' application); id. at 964
(continued...)
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an initiative provision would be a check on the legislature. 13 But they also recognized
14
that an initiative provision should not apply to certain areas of law-making, and
12 (...continued)
(statement of Del. Frank Barr) ("[T]he question is, 'Can the people trust the
legislature?['] If they can, there is no need for any initiative . . . . I believe the
referendum is necessary, but the initiative is not necessary. It is cumbersome, at least it
is more so than our usual method of introducing bills in the legislature . . . ."); id. at 966
(statement of Del. Maynard Londborg) ("I will have to admit that on this particular item
[the initiative] I would like to hear more or have a little time to think about it. I have
been on both sides of the question myself . . . ."); 4 PACC 2991 (Jan. 24, 1956)
(statement of Del. Victor Fischer) ("I don't think the initiative is actually a view of the
people as a whole, of the individual Alaskan. Initiative lends itself only, almost
ICTOR FISCHER, A LASKA 'S CONSTITUTIONAL
exclusively, to use by pressure groups."); V
CONVENTION 79-81 (1975) (summarizing delegates' debates on inclusion of initiative in
Alaska Constitution). The delegates eventually voted by a substantial majority (43 yeas,
10 nays, 2 absent) to adopt the article granting Alaskans the initiative right. 4 PACC
2992-93 (Jan. 24, 1956).
13 2 PACC 934 (Dec. 16, 1955) (statement of Del. Warren Taylor) ("It might
be [there is] some very badly needed legislation but which the legislature would refuse
to act upon. . . . [I]f that was the case, and the people had the right to initiate this
legislation they could possibly cure the ills that were existing by reason of the legislature
not working."); id. at 947 (statement of Del. W. O. Smith) ("That is one of the chief
reasons why I support very strongly the inclusion of the initiative process in the
constitution, even though it is not used, it is there. I think that the legislators, if they
know it is there, they will be very careful in ignoring the will of the people."); id. at 959
(statement of Del. M. R. Marston) ("When a man says 'I don't like that,' you can say
'You have a right.' The people themselves can go into the courts of the land to have
your word made law by a certain procedure."); id. at 967-68 (statement of Del. Douglas
Gray) ("I believe that the real value of the initiative is not in its use. It is in the fact it is
there. It is a threat. That is the real value of the initiative."); id. at 978 (statement of Del.
Frank Barr) ("I am against the basic idea of an initiative but I realize it has some value
if it is in the constitution. In fact it may be a deterrent on the actions of [the] legislature
if they know it is there and could be used . . . .").
14 2 PACC 1272 (Jan. 5, 1956) (statement of Del. Jack Hinckel) ("The
(continued...)
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article XI specifies limitations in section 7: "The initiative shall not be used to dedicate
revenues, make or repeal appropriations, create courts, define the jurisdiction of courts
or prescribe their rules, or enact local or special legislation."
The delegates voted late in the constitutional drafting process to include the
15 But the style and drafting committee had been using "by law" and
initiative provision.
"bythelegislature"interchangeably intheconstitutional text, raising concern therecould
be confusion whether the phrase "by law" applied to both the legislature's power and the
people's initiative power.16 To avoid confusion, the delegates included article XII,
section 11, a general provision regarding law-making power: "Unless clearly
inapplicable, the law-making powers assigned to the legislature may be exercised by the
people through the initiative, subject to the limitations of [a]rticle XI." (Emphasis
added.)
14 (...continued)
Committee was very deliberate about writing this the way we did. We did not feel that
the initiative should be used to propose constitutional amendments. We discussed it very
thoroughly and therewas no divided opinion.");4 PACC2837 (Jan. 21, 1956) (statement
of Del. Victor Fischer) ("I personally am not a believer in the initiative; however, if you
have it, let's be honest about it . . . . If you believe that certain items should be exempted
let's put them in[] . . . and specifically exempt them from the initiative instead of going
through each article, section by section, and by hidden meanings prevent the people from
exercising the initiative."); 4 PACC 2967 (Jan. 24, 1956) (statement of Del. George
Sundborg) (explaining that legislativebranch committeecreated articleXI, §7 to address
law-making by initiative and enumerate items "the Convention intended that the
initiative should not apply to"); id. at 2977-87 (discussion regarding removing from
initiative right power to create courts, define court jurisdiction, or prescribe court rules).
15 4 PACC 2992-93 (Jan. 24, 1956).
16 4 PACC 2820-30, 2835-51 (Jan. 21, 1956); see id. at 2841 (statement of
Del. John Cross) ("[W]hen we were writing this constitution and these articles we made
no distinction between 'legislature' and the 'law.' I am opposed to going ahead and
making that distinction now. I can foresee hours and hours of debate on that.").
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We previously have explained article XII, section 11's language: "The
phrase 'unless clearly inapplicable' was included in the Alaska Constitution 'so that the
initiative would not replace the legislature where the legislature's power serves as a
check on other branches of government, such as legislative power to define courts'
17 Common sense about law-making determines
jurisdiction or override judicial rules.' "
when, under article XII, section 11, the people's law-making power is not co-equal with
the legislature's: "To test whether the initiative is 'clearly inapplicable,' one must ask
whether 'even 55 idiots would agree that it was inapplicable.' "18 The constitutional
provisions and the delegates' debates on the initiative thus make clear that the delegates
intended the people's initiative law-making power be equivalent to the legislature's law-
making power, except in specifically enumerated and other "clearly inapplicable"
circumstances.19
17 Kohlhaas v. State, Office of Lieutenant Governor, 147 P.3d 714, 717
(Alaska 2006) (quoting Brooks v. Wright , 971 P.2d 1025, 1029 (Alaska 1999)).
18 Id. at 717 n.8 (quoting Brooks, 971 P.2d at 1028 (quoting 4 PACC 2849
(Jan. 21, 1956))); 4 PACC 2848-49 (Jan. 21, 1956) (statement of Del. George
McLaughlin) ("All we are asking is that the Convention notes immediately that where
we use in any article . . . 'by the legislature' or we have used in any article the proposal,
the words 'the legislature,' unless those things obviously are inapplicable they are
subject to the initiative and the referendum unless they are otherwise specifically
excluded fromthe article on the initiative and referendum. . . . [W]e are clearly indicating
here that where we use the expression 'by the legislature' or the expression 'the
legislature' we mean completely, thoroughly and [we] wholeheartedly know that it is
subject not only to the initiative but to the referendum, and where it is clearly
inapplicable, even 55 idiots would agree that it was inapplicable."). The humorous
reference to "55 idiots" arose from having 55 convention delegates; it was "the same
number that drafted the United States Constitution." FISCHER, supra note 12, at 14.
19 We have explained on numerous occasions our deferential view toward the
people's initiative right. See, e.g., City of Fairbanks v. Fairbanks Convention &Visitors
(continued...)
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It is worth noting that the initiative is only one of numerous check and
20
balance mechanisms found in our separation of powers form of government. This
particular people's check on government has much in common with constitutional
21 22 rights:
and recall
referendum
The initiative and referendum are devices that permit the
electorate to participate directly in the law-making process.
19 (...continued)
Bureau, 818 P.2d 1153, 1155 (Alaska 1991) ("The usual rule applied by this court is to
construe voter initiatives broadly so as to preserve them whenever possible."); Thomas
v. Bailey, 595 P.2d 1, 3 (Alaska 1979) ("The right of initiative . . . should be liberally
construed to permit exercise of that right."). When reviewing a challenge to an initiative
prior to its submission to voters, we liberally construe the constitutional and statutory
requirements pertaining to the use of initiatives so that "the people [are] permitted to vote
and express their will on the proposed legislation." Boucher v. Engstrom, 528 P.2d 456,
462 (Alaska 1974) (alteration in original) (quoting Cope v. Toronto, 332 P.2d 977, 979
(Utah 1958)), overruled in part on other grounds by McAlpine v. Univ. of Alaska, 762
P.2d 81 (Alaska 1988). "To that end 'all doubts as to technical deficiencies or failure to
comply with the exact letter of procedure will be resolved in favor of the accomplishment
of that purpose.' " Municipality of Anchorage v. Frohne, 568 P.2d 3, 8 (Alaska 1977)
(quoting Boucher, 528 P.2d at 462).
20 See Bradner v. Hammond, 553 P.2d 1, 5 (Alaska 1976). We discussed
prior cases in which we stated: (1) the Alaska Constitution follows the traditional
framework with three branches - executive, legislative, and judicial - of American
government; (2) it can be fairly inferred that Alaska recognizes the separation of powers
doctrine; and (3) that doctrine's underlying rationale "is the avoidance of tyrannical
aggrandizement of power by a single branch of government." Id. We then stated: "The
complementary doctrine of checks and balances must of necessity be considered in
determining the scope of the doctrine of separation of powers." Id.
21 Alaska Const. art. XI, § 1 ("The people may . . . approve or reject acts of
the legislature by the referendum.").
22 Alaska Const. art. XI, § 8 ("All elected officials in the State, except judicial
officers, are subject to recall by the voters . . . . Procedures and grounds for recall shall
be prescribed by the legislature.").
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Through the initiative the voters may enact legislation, and
through the referendum they may veto laws passed by a
recent legislature. Through the recall, the voters may remove
an elected official from office. The initiative and referendum
are known as "direct democracy" provisions. They first
appeared in this country during the populist reform
movement of the early twentieth century, and they are found
in one form or another in about half of the state
constitutions.[23]
There are corresponding checks on the people's right to initiate laws. One, involving
restrictions on subject matter, is described above. Another is the legislature's power to
effectively terminate an initiative by passing "substantially the same" legislation prior
to an election.24 We will later return to this checks and balances theme.
B. One-Subject Rule
1. Constitutional history
Alaska'sconstitutionalone-subject ruleiscontainedin articleII, section13,
entitled "Form of Bills":
Every bill shall be confined to one subject unless it is an
appropriation bill or one codifying, revising, or rearranging
existing laws. Bills for appropriations shall be confined to
appropriations. The subject of each bill shall be expressed in
the title. The enacting clause shall be: "Be it enacted by the
Legislature of the State of Alaska."
The one-subject rule's origins lie with the Roman Empire. The Lex
CaeciliaDidia, enacted in 98B.C., wasalegislativeprocedural lawprohibiting unrelated
23 GORDON HARRISON, A LASKA 'S CONSTITUTION: A C ITIZEN'S GUIDE 179
(5th ed. 2018), http://akleg.gov/docs/pdf/citizens_ guide.pdf.
24 Alaska Const. art. XI, § 4 ("If, before the election, substantially the same
measure has been enacted, the petition is void.").
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25
provisions being combined within one bill ( lex satura ). The one-subject rule has been
used over the centuries to maintain clarity and transparency in law-making and to
26 "Log[]rolling consists of deliberately inserting in one
eliminate logrolling and riders.
bill several dissimilar or incongruous subjects in order to secure the necessary support
for passage of the measure."27 "Riders" are provisions often "unrelated to the main
purpose of the bill"28 that are "attached to bills that are popular and so certain of adoption
that the rider will secure adoption not on its own merits, but on the merits of the measure
to which it is attached."29
The first state to adopt a constitutional one-subject rule was Illinois, in
25 ROBERT LUCE,L EGISLATIVE PROCEDURE: P ARLIAMENTARY PRACTICESAND
THE
COURSE OF BUSINESS INTHE FRAMING OF STATUTES 548-49 (1922). The one-subject
rule had a central place in Rome's history after an omnibus law proposed by Marcus
Livius Drusus in 91 B.C. combined provisions on adding "three hundred members to the
Senate, the taking of jurymen from the Senate instead of the equestrian order, the
encouragement of emigration by devoting to that purpose the undistributed lands in Italy
and the best part of Sicily, [and] the granting of the franchise to the Italian allies," among
other provisions, into one law. Id. at 549; F RANK FROST ABBOTT, A H ISTORY AND
DESCRIPTION OF ROMAN POLITICAL INSTITUTIONS 101 (3d ed. 1911). The Senate struck
down the law as a violation of the Lex Caecilia Didia , and ensuing events included
Drusus's murder and a war between the Roman Republic and the Italian allies. LUCE,
supra, at 548-49; ABBOTT, supra, at 101-02. Today's one-subject rule dispute is not
surrounded by quite the same dramatic context.
26 Millard H. Ruud, No Law Shall Embrace More Than One Subject,
42 MINN. L. R EV. 389, 391 (1958).
27 Gellert v. State, 522 P.2d 1120, 1122 (Alaska 1974); see also Alaska
Legislative Council v. Knowles , 21 P.3d 367, 373 n.33 (Alaska 2001); Ruud, supra
note 26, at 391.
28 Rider, BLACK 'S LAW DICTIONARY (11th ed. 2019).
29 Ruud, supra note 26, at 391.
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30
1818. By 1958, the year before Alaska officially reached statehood, nearly 40 states
had adopted varying constitutional one-subject provisions.31 And the one-subject rule
32 Perhaps because the one-subject rule was such
existed in Alaska well before statehood.
a common fixture, the delegates agreed with little fanfare to its inclusion in the Alaska
Constitution.33
During the Constitution's creation, standing committees drafted proposed
30 Id. at 389. Illinois's 1818 constitutional provision required that bills
appropriating salaries for members of the legislature and government officials be limited
to that single subject. Id.
31 Id. at 390. Ruud notes that although some states' constitutional provisions
use the term "object" instead of "subject" there appears to be "no real difference" in how
courts handle cases dealing with the one-subject or one-object rule. Id. at 395-96.
32 The United States Congress formally organized the Territory of Alaska
through passage of the 1912 "Second Organic Act." Act of Aug. 24, 1912, ch. 387, 37
Stat. 512. Section 8 of the Act provided: "No law shall embrace more than one subject,
which shall be expressed in its title."
33 Alaska is not the only state to have adopted a one-subject rule without
substantive debate. See Justin W. Evans & Mark C. Bannister, The Meaning and
Purposes of State Constitutional Single Subject Rules: A Survey of States and the
Indiana Example, 49 VAL. U. L. R EV. 87, 90 & n.13 (2014) (speculating on reasons for
lack of single-subject-rule historical record and noting: "[T]he rule had become so
common by the late nineteenth century that new constitutional conventions included it
in their constitutions as a matter of course. Another likely explanation is that some states
produced only journals that described the general procedural events of their
constitutional conventions, neglecting to record the actual substance of the debates that
took place."); see also Migdal v. State , 747 A.2d 1225, 1229 (Md. App. 2000) ("One
reason for the relatively limited discussion, in Maryland constitutional history, of the
reasons for the single-subject rule may be that it is one that has been applied for
centuries.").
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34
constitutional articles that were submitted to the delegates for consideration. The
35
Committee on Legislative Branch's proposal included a one-subject rule. The
committee explained that, despite deference to the legislature on form and procedure for
36 The
enactment, the Constitution would require a bill to be "confined to one subject."
committee also stated: "The use of riders on appropriation bills is prohibited, because
of the abuses that have arisen in the Congress and in some states which do not have such
a restriction."37
The delegates only briefly explained the one-subject rule's inclusion in the
Alaska Constitution;38 they expressly recognized that most states had adopted similar
rules and that a one-subject rule would establish "minimum safeguards" in the bill
enactment process.39 Delegate Steve McCutcheon stated:
The theory of requiring that all bills be confined to one
subject with certain exceptions . . . is that nothing can be
gotten through the legislature under the guise of some other
things. Often times a bill that is very popular and has a great
deal of public support and sentiment will have a rider
attached to it which may defeat the very purpose of the bill or
may pertain to some other idea entirely, and the theory
34 FISCHER, supra note 12, at 36, 46-47, 56-59.
35 Constitutional Convention Committee Proposal No. 5, § 16 (Dec. 14, 1955),
http://www.akleg.gov/pdf/billfiles/ ConstitutionalConvention/Folder%20310.5.pdf. The
Committee on Legislative Branch made several revisions to the one-subject rule's
language, most notably separating the one-subject rule from the one-title rule. Compare
id., with id. § 13 (Jan. 23, 1956).
36 Id., cmt. on § 16 (Dec. 14, 1955).
37 Id.
38 See 3 PACC 1746-47 (Jan. 11, 1956).
39 Id. at 1747.
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behind the requirement that each bill be confined to one
subject indicates th[at] thinking. [40]
Returning to the checks and balances theme discussed earlier, it also is
worth noting that in conjunction with other constitutional provisions - like the "direct
democracy" provisions for the people to "veto" legislatively enacted laws through the
referendum and directly initiate laws through the initiative41 - the one-subject rule
works to implement checks and balances in our form of government.42 For example,
under the Alaska Constitution a governor has the power to veto a legislative bill enacting
a law, but only in its entirety, and the power to veto or reduce individual items in
legislative appropriations bills,43 which are immune fromthe one-subject rule.44 Like the
one-subject rule, the constitutional "item veto" for appropriations bills "originated as a
reform measure to prevent legislators from 'logrolling' when they enact appropriation
bills which necessarily address many subjects and need not be confined to a single
subject, and to give governors some ability to limit state expenditures."45 If the
legislature could pass bills enacting laws about multiple subjects in the same way it can
pass appropriation bills with multiple subjects, a "governor's veto power would be
compromised because the legislature could pair a subject that the governor opposed with
40 Id. at 1746-47.
41 See HARRISON, supra note 23 and accompanying text.
42 See Bradner v . Hammond, 553 P.2d 1, 5 (Alaska 1976), discussed supra
note 20 and accompanying text.
43 Alaska Const. art. II, § 15 ("The governor may veto bills passed by the
legislature. [The governor] may, by veto, strike or reduce items in appropriation bills.").
44 Alaska Const. art. II, § 13 (excepting appropriations bills from one-subject
rule).
45 Alaska Legislative Council v. Knowles, 21 P.3d 367, 373 (Alaska 2001).
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one that [the governor] favored." 46
2. Our case law applying the one-subject rule
The delegates described the one-subject rule as a minimum safeguard to
law-making, but they did not define "one subject." We therefore have identified its
parameters when asked to apply the one-subject rule.
a. Gellert v. State
47
Our seminal one-subject-rule decision is Gellert v. State. That case
involved the legislature's enactment of a bill to issue general obligation bonds funding
(1) small boat harbor projects for coastal towns and villages and (2) a Fairbanks flood
48 49
control project. The bond proposition was ratified at a general election. A lawsuit
sought to block the bonds' issuance, in part on the ground that flood control and boat
harbor projects were two distinct subjects in violation of the constitutional one-subject
50 51
rule.
After a trial the superior court rejected this constitutional challenge. On appeal
we generally agreed that constitutional one-subject rules are primarily meant to restrain
46 See HARRISON, supra note 23, at 63.
47 522 P.2d 1120 (Alaska 1974).
48 Id. at 1120-21; id. at 1124 (Fitzgerald, J., dissenting).
49 Id. at 1121 (majority opinion). Article IX, section 8 of the Alaska
Constitution - yet another people's check on legislative power - provides in relevant
part: "No state debt shall be contracted unless authorized by law for capital
improvements . . . and ratified by a majority of the qualified voters of the State who vote
on the question."
50 Gellert, 522 P.2d at 1121.
51 Id. at 1122.
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52
legislative logrolling. But we explained that such provisions should "be construed with
considerable breadth" to avoid undue restrictions on the "scope and permissible subject
matter" of legislation, which otherwise would result in "multiplying and complicating
53 We stated that one-
the number of necessary enactment[s] and their interrelationships."
subject-rule decisions "must be made on a basis of practicality and reasonableness" and
generally must be analyzed "only in terms of the particular facts of each case."54 We
ultimately adopted the Minnesota Supreme Court's "germaneness" test:
All that is necessary is that [the] act should embrace some
one general subject; and by this is meant, merely, that all
matters . . . should fall under some one general idea, be so
connected with or related to each other, either logically or in
popular understanding, as to be parts of, or germane to, one
general subject.[55]
Turning to the case's facts, we declined to adopt the State's argument,
accepted by the superior court, that with bond propositions the general subject is "the
52 Id.
53 Id. As one commentator on the Alaska Constitution puts it, our broad view
of the one-subject rule is to show "deference to the judgment of the legislature on how
ARRISON, supra note 23, at 62.
best to structure individual pieces of legislation." See H
54 Gellert, 522 P.2d at 1123.
55 Id. (quoting Johnson v. Harrison, 50 N.W. 923, 924 (Minn. 1891)). Other
states have adopted this "germaneness" test. See Michael D. Gilbert, Single Subject
ITT. L. R EV. 803, 826 (2006) (describing
Rules and the Legislative Process, 67 U. P
language of tests across jurisdictions and noting other states, including Pennsylvania,
Maryland, and Kansas, follow"germanenessstandard"adoptedbyMinnesotacourt); see
also Richard Briffault, The Single-Subject Rule: A State Constitutional Dilemma,
LB. L. REV. 1629, 1640-42 (2019) (discussing "germaneness" standard and
82 A
variations state courts have adopted).
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56
issuance of bonds for capital improvements"; we discerned a narrower single subject.
We noted trial evidence showing that both projects would receive federal funding and
be administered by the United States Army Corps of Engineers, that both projects were
"part of a continuing program of federal-state cooperation in water resources
57
development," and that preexisting law authorized the State to enter into both projects.
We concluded that the two "topics pertain[ed] to one ongoing plan for the development
of water resources and to the method of funding that plan"58 and that the plan logically
and conveniently could encompass the flood control and boat harbor projects without
violating the one-subject rule.59
b. North Slope Borough v. Sohio Petroleum Corp.
Our next one-subject-rule case, North Slope Borough v. Sohio Petroleum
Corp., involved a legislative act that included provisions regarding income tax credits
for fuel expenses, amendments to a state excise tax on cigarettes, and restrictions on
60 The superior court concluded that the act violated the
municipalities' ability to tax.
one-subject rule because it included two separate subjects: municipal taxation and state
56 Gellert, 522 P.2d at 1121-23; id. at 1124 (Fitzgerald, J., dissenting).
57 Id. at 1121, 1123 (majority opinion).
58 Id. at 1123.
59 Id. Justice Fitzgerald dissented, concluding that: (1) the generally accepted
view seemed to be that the projects to be financed were a bond proposition's subject
matter; (2) Fairbanks flood control and coastal small boat harbors were not the same
subject matter; and (3) the bond proposition was a good example of logrolling because
it was designed to gather voter support by linking projects in different areas of the state.
Id. at 1124 (Fitzgerald, J., dissenting).
60 585 P.2d 534, 544-45 (Alaska 1978), superseded by statute on other
grounds, ch. 23, §§ 2-3, SLA 1991, as recognized in State, Commercial Fisheries Entry
Comm'n v. Carlson, 270 P.3d 755 (Alaska 2012).
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61
taxation. The State appealed, arguing that Gellert's one-subject rule was "very liberal,"
that the challenged subject of "taxation" was more limited than Gellert's subject of water
resources development, and that the legislative record showed no indication of
logrolling, inadvertence, stealth, or fraud. 62
We reiterated that what constitutes one subject is to be liberally construed63
and that no act will be set aside for failure to comply with the one-subject rule "except
where the violation is both substantial and plain."64 Because the state and municipal tax
provisions were intertwined and had a direct impact on state tax revenue, we held that
61 Id. at 545.
62
Brief of Appellant State of Alaska at 50-55, North Slope Borough, 585 P.2d
534 (Nos. 3460/3513/3659).
63 North Slope Borough, 585 P.2d at 545 (citing Gellert, 522 P.2d 1120).
64 Id. (citing Suber v. Alaska State Bond Comm., 414 P.2d 546, 557 (Alaska
1966)). Suber v. Alaska State Bond Committee, a post-statehood decision, actually was
our first consideration of the one-subject rule. See 414 P.2d at 556-57. Suber involved
legislation providing financial relief for some mortgage and lienholders on homes
destroyed in the 1964 earthquake. Id. at 549. A taxpayer raised several constitutional
challenges to the act, including that it violated article II, section 13's one-subject rule and
its related requirement that a bill's subject be expressed in its title, because the act
included an unnoted criminal provision authorizing punishment for false statements or
misrepresentations to obtain financial relief under the act. Id. at 556-57, 556 n.23.
Drawing on territorial court interpretation of the one-subject rule in Alaska's Second
Organic Act, we explained that the constitutional rule is intended to prevent logrolling
and "to guard against inadvertence, stealth and fraud in legislation." Id. at 557. We
stated that when considering adherence to the one-subject rule, courts should "disregard
mere verbal inaccuracies, resolve doubts in favor of validity," and set aside an enactment
only if the violation were "substantial and plain." Id. We concluded that the criminal
sanctions provision was related to the subject expressed in the act's title and did not
violate the one-subject rule. Id.
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65
"[s]tate taxation is not an unduly broad category under the one[-]subject rule" and
concluded that there was no constitutional violation. 66
c. Short v. State
In a subsequent one-subject-rule case, Short v. State, we stated: "[I]t is
apparent that the Gellert test requires no more than that the various provisions of [a]
single legislative enactment fairly relate to the same subject, or have a natural connection
67 That case involved another voter-approved legislative bond package,68
therewith."
unsuccessfully challenged in superior court under the one-subject rule for combining
public safety and correctional facilities capital projects.69 The public safety buildings
were for "state troopers, fish and wildlife protection, a motor vehicles division, a fire
prevention division" -essentially all publicsafety services "the Fairbanks and Soldotna
70 Thecorrectional facilities were "pre-trial detention facilities, juvenile
regions"needed.
offender institutions and new jail facilities in various regions of the state."71
On appeal we concluded that the bond proposition projects fell within the
72 We
single subject of "general public safety function of protecting life and property."
65 North Slope Borough, 585 P.2d at 545.
66 Id. at 546.
67 600 P.2d 20, 24 (Alaska 1979).
68 See Gellert, 522 P.2d at 1121; see also Alaska Const. art. IX, § 8 (requiring
voter approval of statutes authorizing capital improvements).
69 Short, 600 P.2d at 21-22.
70 Id. at 22 n.2.
71 Id.
72 Id. at 24-25.
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expressly rejected the challenger's argument that the one-subject rule requires a stricter
73
standard when measures are submitted to voters,
reasoning that Gellert also involved
a bill ratified by voters and that the policies behind the one-subject rule are the same
whether the law is before voters or the legislature:
The argument that measures submitted to the voters are
deserving of enhanced protection under the one-subject rule
of art[icle] II, [section] 13 of the state constitution has little
merit. . . . The one-subject rule is not restricted to those
legislative acts which also must be approved by the voters;
rather, it applies equally to all enactments of the legislature.
Further, we have applied the provision to bond propositions
in the past in the same way as it has been applied to other
types of legislation. Thus, there does not appear to be any
valid purpose to be served by adopting a more restrictive
interpretation of article II, [section] 13 of the state
constitution in cases where voters either initiate or ratify
proposed legislation in their capacity as the larger legislative
73 TheStateargued that our one-subject reviewofavoter-approvedact should
be even more deferential than in the pure legislative act context:
The single-subject provision is a constitutional requirement
imposed regardless of whether the act is to be presented to
the voters for their approval, and essentially provides that the
only reason an act will be set aside for failure to comply with
the single subject provision is when the violation is both
"substantial and plain." However, it is clear that the
substantial and plain rule is even more stringently applied
when the issue is one presented to the voters. At that point,
only substantial bias plus substantial error can permit a court
to overturn an act . . . .
Brief of Appellee State of Alaska at 29-30, Short, 600 P.2d 20 (No. 4578), (emphases
in original) (citations omitted).
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body of the state. [74]
d. State v. First National Bank of Anchorage
Questions about the Gellert test's feasibility were raised in State v. First
75 In that case the State sued certain defendants under
National Bank of Anchorage.
provisions of the Uniform Land Sales Practices Act for misleading statements and
omissions related to the sale of real property.76 One defendant claimed the Act violated
the one-subject rule because of amendments enacted in 1977.77 The amendments
(1) "br[ought] in-state sales of subdivided land within the Act's scope and . . . add[ed]
a general antifraud section" and (2) changed separate Alaska Land Act provisions
"pertain[ing] to the leasing of state-owned lands and the Division of Land's zoning
power."78 The superior court declined to decide the single-subject challenge, ruling on
74 Short, 600 P.2d at 22 n.4 (citation omitted). Short, of course, did not
involve application of the constitutional one-subject rule to a voter-proposed initiative;
our comment about initiatives thus was dictum. See VECO, Inc. v. Rosebrock, 970 P.2d
906, 922 (Alaska 1999) ("Dicta is defined as '[o]pinions of a judge which do not embody
the resolution or determination of the specific case before the court.' " (alteration in
original) (quoting Dicta, BLACK 'S LAW DICTIONARY (6th ed. 1990))); Scheele v. City of
Anchorage , 385 P.2d 582, 583 (Alaska 1963) ("We look upon what we said in [a
previous] case . . . as obiter dictum, since it was not necessary to the decision in the
case."), superseded by statute on other grounds, AS 09.65.070.
75 660 P.2d 406, 414-15 (Alaska 1982).
76 Id. at 408-10.
77 Id. at 414.
78 Id.
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79 80
other grounds. We considered the challenge on appeal.
Citing North Slope Borough and Gellert, the State argued that the
81 The
challenger had not met his substantial burden to prove a one-subject rule violation.
State emphasized the "liberal construction in favor of the validity" we previously applied
to legislative acts challenged under the one-subject rule, arguing that even if the
challenged amendments to the Act contained numerous provisions under the broad title
of "land" they all were "obviously and logically connected."82 Countering the
challenger's argument on appeal that if "land" can be a proper subject the one-subject
rule has no meaning, the State observed that an act relating to "land" or "transportation"
would not be logically connected if it were to "include provisions dealing with
unemployment compensation, child labor laws, state funding of abortions, or state usury
laws," thus making the one-subject rule meaningful.83
We determined that the Act's challenged amendments satisfied the one-
84 but we acknowledged:
subject rule under the subject of "land,"
79 Id.
80 Id. at 414-15.
81 Brief of Appellee State of Alaska at 69, Brown v. State, consolidated on
appeal with First Nat'l Bank of Anchorage, 660 P.2d 406 (Nos. 5006/5107/5085).
82 Id. at 70-74. The State further explained how broadly it asked us to
construe the subject of a legislative act by quoting the Minnesota Supreme Court: "The
term 'subject,' as used in the constitution, is to be given a broad and extended meaning,
so as to allow the legislature full scope to include in one act all matters having a logical
or natural connection." Id. at 71 (quoting Wass v. Anderson , 252 N.W.2d 131, 137
(Minn. 1977)).
83 Id. at 74.
84 First Nat'l Bank of Anchorage , 660 P.2d at 414-15.
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Were we writing on a clean slate, we would be inclined to
find this subject impermissibly broad. Permitting such
breadth under the one-subject rule could conceivably be
misconstrued as a sanction for legislation embracing "the
whole body of the law." Nevertheless, while the issue is
indeed close, we are unable to say that the legislature has
transgressed the limits of article II, section 13 established by
prior decisions of this court. [85]
e. Yute Air Alaska, Inc. v. McAlpine
Yute Air Alaska, Inc. v. McAlpine is our first case directly addressing the
one-subject rule in the initiative context.86 The proposed initiative would "repeal statutes
regulating motor and air carriers . . . , open the carrier business to . . . all financially
responsible persons, prohibit municipalities from regulating these activities, and require
the governor to seek repeal of the federal statute . . . which requires the use of United
States vessels for shipping goods between United States ports."87 The lieutenant
governor's initiativecertification was unsuccessfully challengedinsuperiorcourt, in part
on the one-subject rule,88 and allowed on the ballot.89
The challengers appealed, arguing that combining provisions about state
and local transportation regulations with provisions about a federal maritime statute
85 Id. at 415 (citation omitted) (quoting Trumble v. Trumble, 55 N.W. 869,
870 (Neb. 1893)).
86 698 P.2d 1173, 1175 (Alaska 1985).
87 Id.
88 Id. at 1175, 1179.
89 Id. at 1179. Voters approved the initiative in a general election several
months before our decision was issued. See STATE OF ALASKA, DIV. OF ELECTIONS,
Initiative History 3 (June 24, 2019), http://www.elections.alaska.gov/doc/forms/H26.pdf.
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90
violated the one-subject rule. The State countered by agreeing with our Short dictum
that the constitutional one-subject rule applies equally to legislation and initiatives, 91
arguing that "the Alaska Constitution makes the law[-]making power equal between the
92 The State again emphasized our case law setting out a
legislature and the electorate."
liberal construction of the one-subject rule and the requirement that alleged violations
of the rule "must be substantial and plain before the court will declare a bill invalid."93
The State then argued that the proposed initiative focused on the single subject of
alleviating the negative economic effects of unnecessary transportation regulation on
commercial enterprise in Alaska, and particularly on abolishing anti-competitive
practices.94 Arguing that the case's facts were more like Gellert than First National Bank
of Anchorage, the State countered the challengers' argument by stating that "the
logrolling of similar subjects is not a proscribed activity."95
90 Yute Air , 698 P.2d at 1175.
91 Short v. State, 600 P.2d 20, 22 n.4 (Alaska 1979); but see supra text
accompanying note 74.
92 Brief of Appellee State of Alaska at 27, Yute Air , 698 P.2d 1173 (No.
S-548) (citing Alaska Const. art. XII, § 11).
93 Id. at 26-28.
94 Id. at 28-30.
95 Id. at 29-31. This is an important point, but one we have not had occasion
to address. In Gellert we generally defined logrolling as "deliberately inserting in one
bill several dissimilar or incongruous subjects . . . to secure the necessary support for
passage of the measure." 522 P.2d 1120, 1122 (Alaska 1974). But logrolling can be
more broadly defined as "the practice of several minorities combining their several
proposals as different provisions of a single bill and thus consolidating their votes so that
a majority is obtained for the omnibus bill where perhaps no single proposal of each
minority could have obtained majority approval separately." Ruud, supra note 26, at
(continued...)
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We relied on a common sense reading of the initiative, noting: "To the
miner at Minto who wants to bring his supplies from Seattle, the interaction and
interrelation [of Alaskan intrastate and federal interstate provisions] is more than just
96 We concluded, in light of previously approved
self-evident - it is glaringly so."
legislation covering broad subject matter, that it was rational and convenient to combine
the initiative's various provisions into one bill under the subject of "transportation."97
We further explained that the initiative's provisions all contained "a common thread
narrower than 'transportation' ": the provisions related to eliminating "regulations and
statutes thought to create needless transportation costs."98
95 (...continued)
391. This distinction matters because in practice legislators often engage in political
bargaining resulting in various provisions being combined in one bill. John G.
Matsusaka & Richard L. Hasen, Aggressive Enforcement of the Single Subject Rule,
9 ELECTION L.J. 399, 405 (2010) ("It should be recognized that legislatures rely
extensively on logrolls to implement their agreements. Indeed, without the ability to
logroll it i s hard to imagine how complicated legislative bargains could be struck and
enforced."); Unity Church of S t. Paul v. State, 694 N.W.2d 585, 592 n.3 (Minn. App.
2005) ("Dissimilar or nongermaneness is the key word. That c annot be lost i n all the
smoke and mirrors that surround this debate. Legislation that someone claims is
'log[]rolling legislation' has always been permissible when similar subjects are united
in one bill and the bill is passed by a combination of legislators, all of whom are united
in wanting their part of the bill to go through." (emphasis in original)).
96 Yute Air Alaska, Inc. v. McAlpine, 698 P.2d 1173, 1175 (Alaska 1985).
97 Id. at 1175, 1181-82.
98 Id. at 1182. Justice Moore dissented, believing that it was wrong to
continue giving the one-subject rule liberal interpretation. Id. (Moore, J., dissenting).
Contending that the Gellert "standard seems to be no standard at all," he proposed the
test simply be that "all matters treated should be logically connected" and "reasonably
interdependent." Id. at 1185-86 (emphasis in original). Justice Burke dissented on the
same ground. Id. at 1189 (Burke, J. dissenting).
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f. Evans ex rel. Kutch v. State
In Evans ex rel. Kutch v. State we briefly discussed the one-subject rule
99 The legislation was codified into various
when upholding 1997 tort reform legislation.
sections of the Alaska Statutes and
included many new tort law provisions, including caps on
noneconomic and punitive damages, a requirement that half
of all punitive damages awards be paid into the state treasury,
a ten-year "statute of repose," a modified tolling procedure
for the statute of limitations as applied to minors,
comparative allocation of fault between parties and non-
parties, a revised offer of judgment procedure, and partial
immunity for hospitals from vicarious liability for some
physicians' actions.[100]
After noting that we, and the court of appeals, had upheld "legislation that was in some
cases very broad," we concluded that the various tort reform provisions fell "within the
single subject of 'civil actions.' "101
99 56 P.3d 1046, 1069-70 (Alaska 2002).
100
Id. at 1048 (footnotes omitted).
101
Id. at 1069-70. We cited two court of appeals' decisions:
Galbraith v. State, 693 P.2d 880, 885-86 (Alaska App. 1985)
(legislation modifying various diverse aspects of the criminal
law - sexual assault, assault, presumptive sentences for
certain felony offenders, telephonic search warrants, disposal
of seized and recovered property, the insanity defense, the
defense of necessity, joyriding, immunity, sentencing
procedure - is within one subject, "criminal law"); Van
Brunt v. State, 646 P.2d 872, 874-75 (Alaska App. 1982)
(statute relating to sale of alcohol and to drunk driving is
within one subject, "intoxicating liquor").
Id. at 1069 n.136.
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g. Croft v. Parnell
We struck a proposed initiative for violating the one-subject rule in Croft
102 In that case the lieutenant governor denied certification of a "clean
v. Parnell .
elections" initiative that would publicly fund state elections through a newoil production
tax, with a non-binding directive to transfer excess tax funds to the Permanent Fund
Dividend.103 The superior court upheld the lieutenant governor's certification denial,
explaining that there was no connection between the type of revenue created and the type
of program the initiative established.104
On appeal the State argued that the one-subject rule extends to initiatives
and that the purpose of the rule is to prevent logrolling.105 The State acknowledged our
deferential standard for determining whether the rule has been violated, but it did not ask
106 The
that we change that standard or that we adopt a stricter standard for initiatives.
State instead argued that "[e]ven under the most deferential of standards . . . oil taxes and
107 that there was "no logical connection
campaign finance are different subjects,"
108 and that logrolling was a large concern
between oil taxation and campaign finance,"
102 236 P.3d 369, 371-74 (Alaska 2010).
103 Id. at 370-71.
104
Id. at 372.
105 Brief of Appellees State of Alaska at 7-11, Croft, 236 P.3d 369 (No.
S-13200).
106 Id. at 8.
107 Id.
108 Id. at 10.
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in light of the focus on oil taxes. 109
We noted the need to balance the one-subject rule's purpose against the
need for legislative efficiency and indicated that "[o]ur solution" has been to apply the
110 but we rejected the initiative sponsors' argument that the
one-subject rule broadly,
initiative's provisions could be related under the subject of "clean elections."111 We
explained that in the initiative context the one-subject rule "protects the voters' ability
to effectively exercise their right to vote by requiring that different proposals be voted
on separately," "allows voters to express their will through their votes more precisely,"
and prevents logrolling, stealth, and fraud.112 We noted that the initiative "proposed the
creation and 'soft dedication' of a new revenue source, and proposed the creation of an
entirely new government program."113 We concluded that, because the Alaska
Constitutionprohibitsearmarkingtaxrevenues,"a'soft dedication' cannot beconsidered
for purposes of a single-subject analysis and therefore cannot be used to make two
114 We ultimately held that
independent provisions of an initiative address one subject."
combining the distinct proposals for an oil production tax and election campaign finance
reform "r[an] afoul of the single-subject rule" by depriving voters of the opportunity to
109 Id. at 10-11.
110
Croft v. Parnell, 236 P.3d 369, 372-73 (Alaska 2010).
111
Id. at 374.
112 Id. at 372.
113 Id. at 373 (emphasis in original). We concluded the non-binding directive
that the legislature transfer excess tax revenue to the Permanent Fund Dividend was
entirely unrelated to the clean election program and an example of logrolling. Id. at 374.
114 Id. at 374.
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vote on each separate proposal. 115
III. THIS INITIATIVE
A. Facts And Proceedings
1. Initiative
116
Alaskansfor Better Electionsisaballotinitiativecommittee(Committee)
seeking to place on a future ballot an initiative entitled:117
An Act prohibiting the use of dark money by independent
expenditure groups working to influence candidate elections
in Alaska and requiring additional disclosures by these
groups; establishing a nonpartisan and open top four primary
election system for election to state executive and state and
national legislativeoffices; changing appointmentprocedures
relating to precinct watchers and members of precinct
election boards, election district absentee and questioned
ballot counting boards, and the Alaska Public Offices
Commission; establishing a ranked-choice general election
system; supporting an amendment to the United States
Constitution to allow citizens to regulate money in Alaska
elections; repealing the special runoff election for the office
of United States Senator and United States Representative;
requiring certain written notices to appear in election
pamphlets and polling places; and amending the definition of
"political party."
The initiative contains 74 sections, all but two of them amending current provisions of
115 Id. at 373.
116 See AS 15.45.030(3) (requiring that initiative application designate three-
sponsor committee to represent all sponsors and subscribers in matters relating to
initiative).
117 See Alaska Const. art. II, § 13 ("The subject of each bill shall be expressed
in the title."); AS 15.45.040(2) (requiring proposed initiative bill to contain "the subject
of the bill" in its title).
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Title 15, Alaska's Election Code. The initiative most significantly changes Alaska's
election laws by: (1) replacing Alaska's current party-based primary system with an
open, nonpartisan primary; (2) establishing ranked-choice voting in general elections;
and (3) adopting new disclosure and disclaimer requirements for independent
expenditure groups and their donors.
2. Certification denial
In July 2019 the Committee submitted an initiative application to
Lieutenant Governor Kevin Meyer.118 The Division of Elections designated the ballot
119
initiative as "19AKBE." The lieutenant governor requested legal review by Attorney
120 121
General Kevin Clarkson, who recommended certification denial. The attorney
general concluded that the initiative was not in the proper form because it contained
122 Briefly, the attorney
more than one subject in violation of the Alaska Constitution.
general's constitutional analysis focused on concerns we have expressed about the
Gellert test's possible over-broadness123 and our rejection of the proposed initiative in
118 See Alaska Const. art. XI, § 2 (requiring initiative application be filed with
lieutenant governor); AS 15.45.020 (same).
119 See AS 15.45.245 (authorizing lieutenant governor to delegate initiative-
related duties to Division of Elections).
120 See Alaska Const. art. XI, § 2 (providing for lieutenant governor's review
of initiative for proper form); AS 15.45.070 (requiring lieutenant governor to review
initiative application within 60 days and either certify or state reasons for denial).
121 STATE OF ALASKA,D EP 'T OF LAW,O P.A TT'Y GEN., 2019200578 (Aug. 29,
2019),http://www.law.state.ak.us/pdf/opinions/opinions_2019/19-003_2019200578.pdf.
122 Id. at 10, 13.
123 Id. at 7-8.
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124
Croft. The attorney general concluded that the initiative raised the concerns identified
125
in Croft and therefore violated the constitutional one-subject rule.
On August 30 the
lieutenant governor denied certification based on the attorney general's opinion.
3. Superior court proceedings
Days later the Committee filed suit in superior court against the lieutenant
governor and theDivision ofElections (collectively, the State), seeking adeclaration that
the initiative is in proper form and does not violate the Alaska Constitution and
requesting injunctive relief directing certification and distribution of initiative petition
126
booklets.
The parties agreed to an expedited briefing schedule and filed cross-motions
124 Id. at 8-9.
125 Id. at 10, 13.
126 Alaska Statute 15.45.090(a) provides:
If the application is certified, the lieutenant governor shall
prepare a sufficient number of sequentially numbered
petitions to allow full circulation throughout the state. Each
petition must contain
(1) a copy of the proposed bill;
(2) an impartial summary of the subject
matter of the bill;
(3) a statement of minimum costs to the
state associated with certification of the
initiativeapplication and reviewoftheinitiative
petition, excluding legal costs to the state and
the costs to the state of any challenge to the
validity of the petition;
(4) an estimate of the cost to the state of
implementing the proposed law;
(continued...)
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for summary judgment. The superior court held oral arguments in mid-October.
The superior court ruled in the Committee's favor in late October, rejecting
the State's contention that Croft provided "new guidance" on the one-subject test. The
court instead quoted Gellert's holding that Alaska's decades-old one-subject test is
construed "with considerable breadth" and concluded that the test applies equally to
127 Explaining that the initiative's substantive provisions all
legislation and initiatives.
related to election reform, the court quoted Yute Air and found "no indication that the
[initiative's] provisions are targeted to different constituencies or that any of the
provisions were calculated to obtain sufficient votes to pass the proposed initiative by
attaching something of popularity 'likely to carry along the enactment of whatever state
law is attached for the ride.' "128 The court ordered that the State immediately distribute
petition booklets for the sponsors to collect signatures for placing the initiative on a
future election ballot. The State moved for a stay pending appeal; the court denied the
request. Final judgment was entered in early November.
126 (...continued)
(5) the statement of warning prescribed
in AS 15.45.100;
(6) sufficient space for the printed name,
a numerical identifier, the signature, the date of
signature, and the address of each person
signing the petition; and
(7) other specifications prescribed by the
lieutenant governor to ensure proper handling
and control.
127 522 P.2d 1120, 1122 (Alaska 1974).
128 See 698 P.2d 1173, 1189 (Alaska 1985) (Moore, J., dissenting).
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4. This appeal
The State appealed, asking for "extremely expedited consideration of this
appeal," arguing that because the Committee was gathering signatures for the initiative,
any delay might cause us to feel "constrained by the sponsors' mounting reliance
interests, which will increase every day." The State pointed to Yute Air 's language
regarding our reluctance to invalidate an initiative because "the sponsors of the initiative
. . . relied on our precedents in preparing the present proposition and undertaking the
129
considerable expense and time and effort needed to place it on the ballot."
We denied "extremely expedited" consideration but agreed to expedite the
appeal, noting we would "give full and fair consideration to this appeal's legal merits,
130
including [the State's] stated intent to ask us to reverse long-standing precedents."
After expedited briefing, the parties argued the case to us on February 19, 2020.
IV. DISCUSSION
We turn now to the State's arguments, making clear their specific nature.
At oral argument before us, the State conceded that, had the initiative bill been passed
by the legislature, the bill would comply with the one-subject rule; that is a well-made
concession, as we discuss further below. The State's arguments instead are that (1) in
Croft we modified the Gellert test for an initiative's compliance with the one-subject rule
- making the test more stringent for initiatives so voters have the ability to vote on
separate topics - and, if not, (2) we should overrule our precedent holding that
initiatives and legislation generally are on even footing for compliance with the one-
subject rule and adopt a more stringent test for initiatives.
129 See id. at 1181, discussed supra pp. 22-23.
130
Meyer v. Alaskans for Better Elections, No. S-17629 (Alaska Supreme
Court Order, Nov. 5, 2019).
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A. Croft Did Not Establish A Different Test For Initiatives.
The superior court ruled that Croft did not create a different one-subject-
rule test for initiatives but rather was consistent with and followed our long-existing
131 That Croft did not overruleor modify previousone-subject-rule
Gellert test precedent.
decisions to create a different test for initiatives is a simple and straightforward
conclusion; in Croft we articulated tangible boundaries to help identify whether the
initiative went too far beyond the parameters of "one subject."132 We first focused on the
initiative's magnitude and means of achieving "clean elections."133 We reasoned that the
proposed initiative created (1) a new oil-production tax and (2) a new and unrelated
government program to fund state office election campaigns.134 We decided the two
provisions were of such magnitude as to be distinct and unrelated subjects,135 and we
additionally notedthestrong appearanceoflogrollingdifferentsubjects togarner support
for the initiative.136
131 "We review a trial court's legal analysis de novo, applying 'the rule of law
that is most persuasive in light of precedent, reason, and policy.' " Dan v. Dan , 288 P.3d
480, 482 (Alaska 2012) (quoting Vezey v. Green , 171 P.3d 1125, 1128-29 (Alaska
2007)).
132 236 P.3d 369, 373-74 (Alaska 2010).
133 Id.
134 Id. at 371, 373.
135 Id. at 373-74.
136 Id. at 374. We expressly agreed with the superior court's observation that
"record oil and gas prices, high oil company profits, the Exxon Valdez litigation, and
controversy regarding a proposed gas pipeline" made the oil industry a topic that
appeared to have been included to logroll support from different constituencies. Id. We
further noted that the initiative's varied provisions were likely to evoke strong feelings
(continued...)
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We did not completely rule out the possibility that the two distinct topics
137
could be germane to each other,
but we concluded that the connection was not
138 139
and we noted that the
obvious. We required a factual demonstration of a nexus,
sponsors' submission of "two newspaper articles and a listing of the top groups lobbying
the Alaska legislature" was "insufficient to demonstrate a clear or established connection
140
between the oil industry and a need for public financing of state electoral campaigns."
This inquiry was consistent with the Gellert test, requiring that "all matters treated"
should be connected or related with each other "as to be parts of, or germane to, one
general subject."141 Without evidence showing a link "between the oil industry and a
need for public financing of state electoral campaigns," the initiative's distinct topics
136 (...continued)
in voters because of its focus on the oil industry. Id. There was a substantial risk that
the initiative would tap a voter's strong feelings regarding one provision to support the
other distinct provision. Id. But the most obvious demonstration of logrolling was the
initiative's inclusion of a non-binding directive to transfer leftover oil tax funds to the
Permanent Fund Dividend. We viewed this provision, which was "entirely unrelated to
the purpose of the clean elections program," as a transparent attempt to garner voter
support for the initiative with the suggestion that voters would receive larger Permanent
Fund Dividend payments if the initiative became law. Id. And this logrolling discussion
was consistent with Gellert's explanation that "the primary aim of 'one-subject'
provisions in state constitutions is the restraint of logrolling in the legislative process."
See Gellert v. State, 522 P.2d 1120, 1122 (Alaska 1974).
137 See Croft, 236 P.3d at 374.
138 See id.
139 See, e.g., Gellert, 522 P.2d at 1121, 1123 (reviewing evidence produced at
trial).
140 Croft, 236 P.3d at 374.
141 Gellert, 522 P.2d at 1123 (quoting Johnson v. Harrison, 50 N.W. 923, 924
(Minn. 1891)).
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could not be joined under the subject of "clean elections." 142
We note that in Croft the State did not ask us to establish a different one-
143 144 We
and we certainly did not say we were doing so.
subject-rule test for initiatives,
145 And wedid
did not differentiatebetweenimproper legislativeandinitiativelogrolling.
not disturb our Yute Air ruling that "[a] one[-]subject rule for initiatives which is more
restrictive than the rule for legislative action is not permitted."146 In short, we affirm the
superior court's conclusion that Croft did not establish a new and different one-subject-
rule test for initiatives.
B. We Decline To Overrule Yute Air.
The State alternatively argues that if the original Gellert test still applies
to initiatives after Croft, we "should overrule [that precedent] and restore substance to
the single-subject rule to protect voter choice in the initiative context." The State notes
that some members of the court previously "expressed skepticism" because the Gellert
142 Croft, 236 P.3d at 374. We added a consideration to the Gellert test: We
will not accept a proposed nexus for the distinct provisions if that nexus runs afoul of
other constitutional prohibitions. Id. We rejected the initiative sponsors' argument that
the three-cent oil barrel tax to fund the public campaign program was merely a "soft
dedication" of funds, and we explained that the Alaska Constitution "expressly prohibits
the binding dedication of state revenues for specific projects." Id. at 371, 372, 374 &
n.21 (citing Alaska Const. art. IX, § 7, art. XI, § 7). If the only connection between an
initiative's distinct provisions is an unconstitutional one, then the distinct provisions
cannot together constitute "one subject." See id. at 374.
143 Cf. Brief of Appellees State of Alaska at 7-11, Croft, 236 P.3d 369 (No.
S-13200).
144 See Croft, 236 P.3d at 372-74.
145 See id. at 374.
146 698 P.2d 1173, 1181 (Alaska 1985); see Croft, 236 P.3d at 372-74.
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test is "extremely lax," and the State specifically requests that we overrule our Yute Air
holding that the Gellert test applies equally to legislation and initiatives. The State now
147 - that the one-subject rule is only
argues - contrary to its argument to us in Yute Air
a procedural limitation to law-making, that the Alaska Constitution therefore allows a
stricter standard for initiatives, and that a stricter one-subject standard for initiatives
would allow voters to more precisely express their will. Finally, the State proposes a
one-subject standard for initiatives that would "consider both how the parts of an
initiative are inter-related and the overall significance of each reform."
The Committee counters that the State has not met its high burden of
overcoming the presumption of stare decisis.148 The Committee argues: "For the people
to have equal law[-]making power to the legislature, the single-subject rule must be
equally applied." And the Committee contends that the State's proposed stricter one-
subject standard for initiatives "is unworkable in practice, would hamstring the ability
of Alaskans to enact laws by initiative, and would completely muddy the waters in an
otherwise clear area of the law."
We agree with the Committee that imposing a stricter one-subject standard
to initiatives than to legislation would run counter to the delegates' intent that the
initiative serve as the people's check on the legislature. Under our system of checks and
balances, when the legislature fails to pass laws the people believe are needed, the people
have the initiative power to create those laws. And one driving force behind article XII,
section 11 was identifying clearly the people's broad law-making power, preventing
147 See discussion supra pp. 22-23.
148
See Stare decisis, BLACK 'S LAW DICTIONARY (11th ed. 2019) (meaning "to
stand by things decided" and requiring courts to follow precedent when same points
again arise).
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confusion about its extent. 149
The State nonetheless contends we should impose a stricter one-subject
standard for initiatives that would (1) require interrelatedness between the various
provisions and (2) "consider the overall significance of an initiative's provisions." The
State notably made no suggestion in its briefing that the legislature should be subject to
this stricter one-subject standard, and at oral argument before us the State conceded that
150 The
it was not seeking a stricter one-subject standard that would affect the legislature.
State recognized at oral argument that applying a stricter one-subject standard would be
149 See 4 PACC 2840 (statement of Del. M. R. Marston) (Jan. 21, 1956) and
discussion supra pp. 4-7; Yute Air , 698 P.2d at 1181 ("[The dissent's] contention . . . that
the single[-]subject requirement should be more strictly applied in the initiative (as
opposed to legislative) context not only is adverse to our deferential attitude toward
initiatives, it also ignores the explicit constitutional directive [of article XII, section 11]
to the contrary.").
150 We note examples of the common legislative practice of passing sweeping
laws containing provisions that probably would not have met the State's proposed
stricter one-subject standard because not all of their various provisions were interrelated
or interdependent. See Evans ex rel. Kutch v. State, 56 P.3d 1046, 1048, 1069-70
(Alaska 2002) (involving tort reform legislation, with new provisions "including caps
on noneconomic and punitive damages, a requirement that half of all punitive damages
awards be paid into the state treasury, a ten-year 'statute of repose,' a modified tolling
procedure for the statute of limitations as applied to minors, comparative allocation of
fault between parties and non-parties, a revised offer of judgment procedure, and partial
immunity for hospitals from vicarious liability for some physicians' actions" (footnotes
omitted)); State v. First Nat'l Bank of Anchorage, 660 P.2d 406, 414 (Alaska 1982)
(involving 1977 amendments to Uniform Land Sales Practices Act that brought "in-state
sales of subdivided land within theAct's scope,"added "ageneralantifraud section," and
included "various amendments to the Alaska Land Act pertain[ing] to the leasing of
state-owned lands and to the Division of Lands' zoning power"); see also Galbraith v.
State, 693 P.2d 880, 885-86, 885 n.7 (Alaska App. 1985) (modifying various aspects of
criminal law, including sexual assault, assault, presumptive sentences for certain felony
offenders,telephonicsearch warrants, disposal ofseized and recovered property, insanity
defense, defense of necessity, joyriding, immunity, and sentencing procedure).
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impractical for the legislature's efficiency.
If a stricter one-subject standard would be impractical for the legislature,
and if the constitutional initiative provision were intended to provide co-equal law-
making power to the people (subject to stated exceptions), we cannot employ a separate
and stricter one-subject standard for initiatives. The purposes behind the initiative right
- to serve as a check on the legislature and to pass needed laws - are not served if we
impose a stricter one-subject standard on the people but allow the legislature to operate
151 In effect, the State asks us to put our judicial thumb on the
under a more liberal rule.
151 For example, theparties discuss the2014 marijuanainitiativein their briefs.
See STATE OF ALASKA, D EP 'T OF LAW, O P. A TT'Y GEN., JU2013200236 (June 11,
2013), http://www.law.alaska.gov/pdf/opinions/opinions_2013/2013-005_
JU2013200236.pdf . Although the State describes that initiative as containing "discrete
topics," the initiative created new chapters to Titles 17 and 43 of the Alaska Statutes. See
STATE OF ALASKA, D EP 'T OF ELECTIONS, I NITIATIVE PETITIONS APPEARING ON BALLOT,
Petition Application (Apr. 16, 2013), http://www.elections.alaska.gov/petitions/
13PSUM/13PSUM-Proposed-Law.pdf. The initiative also had provisions on topics as
varied as: (1) personal use; (2) personal cultivation; (3) public use; (4) operation of
marijuana-related facilities; (5) creation of a Marijuana Control Board in the Department
of Commerce, Community, and Economic Development; (6) adoption of regulations;
(7) local control; (8) marijuana taxation administration and enforcement. JU201320236
at 1. The attorney general concluded that the initiative bill was confined to the subject
of "the production, taxation, sale, and use of marijuana." Id. at 4. The lieutenant
governor certified the initiative and it later was approved by the voters at an election.
STATE OF ALASKA, D EP 'T OF ELECTIONS, I NITIATIVE PETITIONS APPEARING ON BALLOT,
Ballot Measure No. 2 - 13PSUM: An Act to tax and regulate the production, sale, and
use of marijuana (Nov. 4, 2014), http://www.elections.alaska.gov/Core/doc/bml/BM2-
13PSUM-ballot-language.pdf. This likely would not have happened under the State's
proposed stricter one-subject test.
The Committee also cites an Attorney General Opinion regarding a cruise
TATE OF ALASKA, D EP 'T OF LAW, O P. A TT'Y GEN., 663-03-0179
ship initiative. See S
(Oct. 6, 2003), http://www.law.alaska.gov/pdf/opinions/opinions_2003/03-019_
663030179.pdf. The initiative was resubmitted after the attorney general initially
(continued...)
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scale to limit the people's constitutional check against legislative inaction, limiting the
people's law-making power to only piecemeal legislation. 152
With all this in mind, we turn to our framework for deciding whether to
overrule precedent. When we are asked to overrule our precedent, the importance of
stare decisis cannot be overstated: "[S]tare decisis is a practical, flexible command that
balances our community's competing interests in the stability of legal norms and the
need to adapt those norms to society's changing demands."153 A party seeking reversal
bears the "heavy threshold burden of showing compelling reasons for reconsidering the
prior ruling."154 "We will overrule a prior decision only when clearly convinced that the
151 (...continued)
concluded it violated the one-subject rule. Id. at 1. The attorney general reviewed the
resubmitted initiative petition and concluded it satisfied the one-subject rule: "The
proposed bill covers taxes, discharge permits, gaming, unfair trade practices, and other
issues, and generally unites these topics with the consistent theme of regulation of
commercial passenger vessels." Id. at 3. Voters later approved the initiative at an
TATE OF ALASKA, D EP 'T OF ELECTIONS, I NITIATIVE PETITIONS APPEARING ON
election. S
BALLOT, Ballot Measure No. 2 - 03CTAX: An Act providing for taxation of certain
ship vessels, pertaining to certain vessel activities and related to ship vessel operations
taking place in the marine waters of the State of Alaska" (Aug. 22, 2006),
http://www.elections.alaska.gov/petitions/03CTAX/ 03CTAXB.pdf. Again, this likely
would not have happened under the State's proposed stricter one-subject test.
152 Cf. Alaska Const. art. XII, § 11 ("Unless clearly inapplicable, the law-
making powers assigned to the legislature may be exercised by the people through the
initiative, subject to the limitations of [a]rticle XI.").
153 Pratt & Whitney Canada, Inc. v. Sheehan, 852 P.2d 1173, 1175 (Alaska
1993); see also Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska
2004) ("The stare decisis doctrine rests on a solid bedrock of practicality: 'no judicial
system could do society's work if it eyed each issue afresh in every case that raised it.' "
(quoting Pratt, 852 P.2d at 1175)).
154 Thomas, 102 P.3d at 943.
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rule was originally erroneous or is no longer sound because of changed conditions and
that more good than harm would result from a departure from precedent." 155 We need
address only the first prong of the test to reject the State's argument.
The State dismisses Short and Yute Air as "originally erroneous,"
speculating that in both cases we felt compelled to uphold the measures because voters
already had approved them. As we noted earlier, Short's statement about the one-subject
156 Yute Air is the controlling authority, and we focus our attention on
rule was dictum;
that decision.
Yute Air descended from Gellert, in which Justice Fitzgerald dissented.157
The dissent believed the combination of Fairbanks flood control and coastal small boat
harbor projects was a "good example" of improper logrolling because the bill sought to
"gather voter support for a project in the interior of Alaska by linking it with harbor
projects dear to the coastal towns and villages."158 The dissent argued that the majority's
test would render the one-subject rule "meaningless," although admitting that it is
"difficult to determine whether a group of projects has one subject matter."159
We expressed concern about the feasibility of the one-subject rule in
155 Id. (quoting State, Commercial Fisheries Entry Comm'n v. Carlson,
65 P.3d 851, 859 (Alaska 2003)). "A decision may prove to be originally erroneous if
the rule announced proves to be unworkable in practice." Pratt, 852 P.2d at 1176; see
also In re Hospitalization of Naomi B. , 435 P.3d 918, 926-27 (Alaska 2019) (discussing
"unworkable in practice" scenario).
156 See discussion supra pp. 18-20.
157 Gellert v. State, 522 P.2d 1120, 1124 (Alaska 1974) (Fitzgerald, J.,
dissenting).
158 Id.
159 Id.
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160
subsequent cases, and in Yute Air we directly addressed whether there was a more
161
workable alternative.
In that case Justice Moore dissented, stating that we "mistakenly
continued to give the rule such an extremely liberal interpretation that the rule has
162 The dissent noted that the one-subject rule's purpose was "to restrain
become a farce."
'log[]rolling' in the legislative process"163 and that the lax one-subject rule "actually
allows disparate subjects to be enfolded within the cloak of a broad generality."164 The
dissent also believed that in the initiative context "[t]here is a greater danger of
logrolling, or the deliberate intermingling of issues to increase the likelihood of an
initiative's passage, and there is a greater opportunity for 'inadvertence, stealth and
fraud' in the enactment-by-initiative process."165
The dissent presented two proposals for replacing our current one-subject
standard. In one footnote the dissent suggested applying a "functional test," adopted by
the Florida Supreme Court, when considering whether an initiative violates the one-
160 See Short v. State , 600 P.2d 20, 25 (Alaska 1979) (rejecting appellant's due
process argument, but noting that "the one-subjectrulewould not assure voters sufficient
notice of the objectives of a particular piece of legislation if diluted to require little or no
connection between subjects joined therein; so construed, it could also conceivably
deprive the voter of his or her liberty of choice, forcing acceptance of an objectionable
proposition by coupling it with an unrelated meritorious objective which the voter
earnestly wants to support"); see also State v. First Nat'l Bank of Anchorage , 660 P.2d
406, 414-15 (Alaska 1982) (discussing permissibility of legislation covering broad
subject).
161 698 P.2d 1173, 1180-81 (Alaska 1985).
162 Id. at 1182 (Moore, J., dissenting).
163 Id. at 1183.
164 Id.
165 Id. at 1184.
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166
subject rule. Courts applying the "functional test" consider whether the proposed
initiative was merely an "aggregation of dissimilar provisions (designed) to attract
support of diverse groups to assume its passage" and whether the "initiative performs the
167 The dissent also offered a "more
functions of different branches of government."
useful" Gellert test: "A stronger and clearer version . . . would read as follows: An act
or initiative should embrace one subject. By this we mean that all matters treated should
be logically connected."168 The dissent notably suggested that this new test apply
prospectively to both the legislature and the initiative.169 But the dissent acknowledged
that this new wording of the Gellert test would "not automatically turn this court away
from the Anything Goes approach of the 'merely . . . germane' standard embraced in
Gellert."170
We responded to the dissent, acknowledging the argument that we had
given the legislature too much deference in Gellert's application of the one-subject
171 172 and
But we explained that we had not found a more workable stricter standard
rule.
166 Id. at 1183 n.4.
167 Id. (quoting Evans v. Firestone, 457 So. 2d 1351, 1354 (Fla. 1984)).
168
Id. at 1185.
169 Id. at 1187.
170 Id. at 1185-86 (alteration in original).
171 Id. at 1180-82 (majority opinion).
172
Our discussions about how strictly to apply the one-subject rule are not
unique to Alaska. Debates over the one-subject rule's application abound in state courts
across the country. See Briffault, supra note 55, at 1636-40 (discussing application of
single-subject rules in various states); Robert D. Cooter & Michael D. Gilbert, A Theory
of Direct Democracy and the Single Subject Rule , 110 COLUM. L. R EV. 687 (2010)
(continued...)
-42- 7460
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thatthedissent's proposed Floridarulewould makeenacting uniformcodes prohibitively
173
difficult.
We emphasized the stability and predictability of our prior decisions, noting
172 (...continued)
(examining state court applications of single-subject rule and proposing "separable
preferences" approach); Daniel Hays Lowenstein, California Initiatives and the Single-
EV. 936, 936-53 (1983) (discussing application of single-
Subject Rule, 30 UCLA L. R
subject rule in California). As we explained in Yute Air , it remains unclear whether there
are workable stricter standards. 698 P.2d at 1180-81; see Cooter & Gilbert, supra, at 687
(noting that "[l]ogic and language cannot yield a precise definition of 'subject' ");
Lowenstein, supra, at 963-65, 975 (concluding that California's analogous "'reasonably
germane' test best serves the single-subject rule's language and purposes"); see also
Matsusaka & Hasen, supra note 95 (analyzing more than 500 judicial votes in single-
subject cases during period 1997-2006 and concluding that "in states with aggressive
enforcement of the single[-]subject rule, decisions are well predicted by whether or not
a judge is likely to agree with the substance of the initiative under review based on his
or her partisan affiliation").
173 Yute Air, 698 P.2d at 1181 ("Many laws embracing a single subject direct
more than one governmental department to act. For example, nearly all uniform codes
have provisions directing judicial and executive action and thus would have to be passed
in separate enactments under the Florida rule."). Florida is known for its "aggressive
application"ofits one-subject rule. Daniel H. Lowenstein, Initiatives andtheNewSingle
Subject Rule, 1 ELECTION L.J. 35, 41-42 (2002). But Florida at times has been criticized
for inconsistent application of its one-subject rule. See, e.g. , Advisory Op. to Att'y Gen.
- Ltd. Political Terms in Certain Elective Offices , 592 So.2d 225, 231 (Fla. 1991)
(Kogan, J., concurring in part and dissenting in part) ("[W]e traditionally have stated that
[Florida's one-subject rule for initiatives proposing constitutional amendments] requires
an initiative to contain a logical and natural 'oneness of purpose' . . . . [T]he erratic
nature of our own case law construing [this provision] shows just how vague and
malleable this 'oneness' standard is. What may be 'oneness' to one person might seem
a crazy quilt of disparate topics to another. 'Oneness,' like beauty, is in the eye of the
beholder; and our conception of 'oneness' thus has changed every time new members
have come onto this Court." (citation omitted)); Rachael Downey, et al., A Survey of the
ONTEMP. L EGAL ISSUES
Single Subject Rule as Applied to Statewide Initiatives, 13 J. C
579, 590-96 (2004) (examining Florida's application of one-subject rule over time).
-43- 7460
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174
that both the initiative sponsors and the lieutenant governor had relied on Gellert. We
further reiterated that "an initiative is an act of direct democracy guaranteed by our
175 We believed stricter application of
constitution" and "should be liberally construed."
the one-subject rule to the initiative "ignore[d] the explicit constitutional directive" of
article XII, section 11.176 We therefore concluded we would continue applying the
Gellert test equally to the legislature and the initiative.177
We reaffirm our Yute Air conclusion. Contrary to the State's speculation
that we were overly swayed by the initiative's passing at the previous general election
held just before our decision was issued, our reasoning focused solely on whether the
initiative's provisions satisfied our Gellert one-subject standard.178 Although the State
also now argues that the one-subject rule is "procedural" rather than "substantive" and
that the Alaska Constitution permits the State's alternative, stricter test, that argument -
even assuming its validity - demonstrates nothing erroneous in our decision to apply
the one-subject test equally to initiatives and legislation. When the State originally
179 we clearly explained in
argued Yute Air before us, it argued for the same conclusion;
our decision why we rejected the dissent's approach. Andour subsequent Croft decision,
174 Yute Air , 698 P.2d at 1181.
175 Id.
176 Id.
177 Id.
178 See id. at 1175, 1180-82.
179 As discussed earlier at pages 22-23 and note 92, the State affirmatively
argued in support of our Yute Air holding, citing article XII, section 11 and asserting that
the Alaska Constitution provides equal law-making powers to the legislature and to
Alaska's people. The State has not attempted to explain why its constitutional
interpretation suddenly has changed from one of substance to one of procedure.
-44- 7460
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striking downaproposedinitiative after application of the Gellert test, demonstrates that,
although imperfect, our one-subject-rule test is workable in practice. 180
We see no basis to overrule Yute Air and create a different one-subject rule
for the people's right to make laws through the initiative process. The approach we
announced in Yute Air is consistent with the Alaska Constitution, and the State's
proposed approach runs counter to the people's constitutional law-making right. The
State has not met its burden to show that our Yute Air holding was originally erroneous.
C. The Initiative Passes The Gellert Test.181
We turn now to the Committee's proposed initiative.182 The proposed
initiative includes a "findings and intent" section setting out the goal of "increasing
transparency, participation, access, and choice" in the electoral process. The initiative
aspires to ensure that wealth does not unduly influence state elections and that Alaskans
"know in a timely manner the source, quantity, timing, and nature of resources used to
influence candidate elections in Alaska." The section further provides that "[i]t is in the
180 See Croft v. Parnell , 236 P.3d 369 (Alaska 2010).
181 As noted earlier, the State conceded at oral argument that the initiative
would pass the Gellert one-subject-rule test if it were legislation rather than an initiative.
Given our rulings above that our existing Gellert framework applies to the initiative, we
could dispense with this section of the opinion. But for transparency we will outline the
analysis. Again, we review the superior court's decision de novo. See supra note 131.
182 We have a limited role in determining whether a proposed initiative is in
proper form by satisfying the one-subject rule. We do not decide the legal or other
merits of the initiative's substance. Kodiak Island Borough v. Mahoney, 71 P.3d 896,
899(Alaska2003) (explainingthat "pre-election review [of initiativepetitions]is limited
to determining 'whether [the initiative] complies with the particular constitutional and
statutory provisions regulating initiatives'; whereas, '[g]eneral contentions that the
provisions of an initiative are unconstitutional are justiciable only after the initiative has
been enacted by the electorate' " (second and third alterations in original) (footnote
omitted) (quoting Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999))).
-45- 7460
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public interest" to adopt an open, nonpartisan primary system and a general election
ranked-choice voting system. The extremely detailed initiative title similarly explains
that the act would, among other things, "prohibit[] the use of dark money by independent
expenditure groups working to influence candidate elections in Alaska and requir[e]
additional disclosures by these groups."
The parties agree that the initiative would make three substantive changes
to Alaska election law: (1) replacing the party primary system with an open, nonpartisan
primary; (2) establishing ranked-choice voting in the generalelection; and (3) mandating
new disclosure and disclaimer requirements to existing campaign finance laws. A plain
reading of the initiative shows that its provisions embrace the single subject of "election
reform" and share the nexus of election administration. All substantive provisions fall
under the same subject matter of elections, seek to institute an election reform process,
and, as the superior court noted, change a single statutory title, Title 15, Alaska's
Elections Code.
Although the initiative's inclusion of terms such as "dark money" and "true
183 those feelings relate to the
source" arguably could evoke "strong feelings" in voters,
election reform topic; the initiative's text shows no transparent attempt to garner voter
support through completely unrelated provisions. And nothing suggests the title is
misleading or the initiative is so unclear that it gives rise to a concern about confusion,
fraud, or inadvertence.184 The initiative's provisions substantively modify current
election laws such that we can logically conclude they fall under the one subject of
"election reform."
183 See Croft , 236 P.3d at 374.
184
See Gellert v. State, 522 P.2d 1120, 1122 (Alaska 1974) (noting that one-
subject rule "guard[s] against inadvertence, stealth and fraud in legislation" (quoting
Suber v. Alaska State Bond Comm., 414 P.2d 546, 557 (Alaska 1966))).
-46- 7460
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The State argues that the three substantive changes to the election laws "are
not actually 'connected' through cross-references or other logical reliance" and that
"[n]one depends on the others to function properly." The State's argument focuses
primarily on whether voters could vote separately on each substantive legal reform. But
neither Gellert nor Croft requires severing every provision that, in the abstract, could be
voted on separately. And we have never required that a proposed law's "subject" be the
most minute and discrete possible. We recognized instead in Gellert the convenience of
185 In Short we further emphasized the need
classifying related matters under a single bill.
to give "great latitude in enacting comprehensive legislation" and cautioned that "[t]he
one-subject provision should not be construed so as to unnecessarily restrict the scope
and operation of laws, or to multiply their number excessively."186 And in Croft we
rejected the initiative not simply because its provisions were severable, but because they
were distinct subjects and lacked a nexus.187 Thus, the question is not whether the
initiative could be split into separate measures, but rather whether the various provisions
"embrace some one general subject."188
The initiative's provisions are logically related. The substantive changes
relate to elections and are encompassed within Title 15. The open, nonpartisan primary
185 See id. at 1122-23.
186 600 P.2d 20, 23 (Alaska 1979) (emphases added); see also Evans ex rel.
Kutch v. State, 56 P.3d 1046, 1069 (Alaska 2002) (considering broad tort reform
legislation and stating "that 'what constitutes one subject for purposes of article II, § 13
is broadly construed,' and that only a 'substantial and plain' violation . . . will lead us to
strike down legislation on this basis" (quoting State v. First Nat'l Bank of Anchorage,
660 P.2d 406, 415 (Alaska 1982))).
187 See 236 P.3d at 374.
188 Gellert, 522 P.2d at 1123 (quoting Johnson v. Harrison, 47 Minn. 575, 50
N.W. 923, 924 (1891)).
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system changes the status quo by forwarding four candidates for voters to rank in the
general election by ranked-choicevoting. Thesetwo substantivechanges areinterrelated
189
because they together ensure that voting does not revert to a two-candidate system.
The Committee also argues that "when moving away from party primary elections and
allowing for more candidates on the general election ballot, it becomes more important
than ever that voters have adequate and accurate information about who is paying for
campaign communications to influence their vote." A provision increasing voter
knowledge logically relates to election reform.
Unlike the Croft sponsors' juxtaposing oil industry taxation, campaign
190
finance, and Permanent Fund Dividend payments into one "clean elections" initiative,
this initiative's provisions are properly classified under "election reform" as a matter of
both logic and common sense. They all relate to the elections process and share the
common thread of reforming current election laws. We can logically conclude that the
various initiative provisions substantively change (or reform) the state's elections.
The Gellert test, despite its imperfections, has guided our one-subject-rule
precedent for over 40 years. The subject "election reform" is more constricted than
subjects we previously have upheld.191 The initiative satisfies the Gellert test; it now is
189 Section 37 of the proposed initiative amends current law to clarify: "The
primary election does not serve to determine the nominee of a political party or political
group but serves only to narrow the number of candidates whose names will appear on
the ballot at the general election. . . . [O]nly the four candidates who receive the greatest
number of votes for any office shall advance to the general election."
190 See 236 P.3d at 374.
191 See, e.g., Evans ex rel. Kutch, 56 P.3d at 1069-70 ("civil actions"); Yute Air
Alaska, Inc. v. McAlpine , 698 P.2d 1173, 1181 (Alaska 1985) ("transportation"); First
Nat'l Bank of Anchorage, 660 P.2d at 415 ("land"); Short, 600 P.2d at 24 ("general
(continued...)
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up to the people to decide whether the initiative's provisions should become law.
V. CONCLUSION
We AFFIRM the superior court's ruling and judgment reversing the
lieutenant governor's certification denial of the Committee's proposed initiative.
191 (...continued)
public safety function of protecting life and property"); North Slope Borough v. Sohio
Petroleum Corp., 585 P.2d 534, 546 (Alaska 1978) ("state taxation"); Gellert, 522 P.2d
at 1123 ("cooperative water resources development").
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