UCD Professor Worries That Prop 8 Decision Will Harm Initiative Process

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SupremeCourt“It was completely understandable, justifiable and even predictable that the Supreme Court would dispose of the challenge to California’s voter-enacted ban on same-sex marriage, Proposition 8, by saying that the sponsors/proponents of the measure lacked legal ‘standing’ to defend it in federal court, even when the State Governor and Attorney General failed to defend,” UC Davis law professor Vikram Amar writes in an article published in Verdict this week.

His article argues that the Supreme Court could have found a way to have “avoided unnecessary damage to the initiative device,” even as he believes it somewhat reasonable that the court find a “principled legal way to bypass until another day the big question of whether there is a national right to same-sex marriage.”  He simply felt that the court needed to explore alternatives ways to do so.

He argued, “The Court needed to steer clear of damaging the initiative device in general, even as it denied standing to Proposition 8’s sponsors in particular.”  He defended the initiative device and argued that “Chief Justice Roberts’s 5-4 majority opinion did not navigate this terrain particularly cautiously, and the integrity of direct democracy might end up being the victim.”

Professor Amar argued (along with the Vanguard), that the best argument in favor of standing was put forward in Justice Anthony Kennedy’s dissent.

Justice Kennedy would write, “In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government.”

Professor Vikram notes, “Elected officials should not be able to effectively defeat initiatives by simply not defending the measures against federal court challenge. This is especially problematic because the initiative device is derived from a concern that elected officials sometimes do not act in ways that are faithful to the people’s interests and desires.”

The professor adds, “While most initiatives are responses to inaction (or unpopular action) by the legislative branch, there is no reason to think that the distrust of elected officials represented by the initiative mechanism does not also carry over to officials like Governors and Attorneys General.”

At the same time, he thinks granting sponsors the ability to effectively represent the state raises its own problems.

He argues, “Initiative proponents who are not picked by the voters may lack credibility, and may in fact be rogue actors whose current views, sentiments, and desires bear little relation to those of the electorate that adopted the initiative in question, much less the electorate that exists at the time litigation is conducted.”

The majority would argue that the “initiative sponsors are not subject to control of the voters the way regular State officials are.”

Professor Vikram argues for a middle path: “A state should be free to authorize sponsors to defend initiatives… but the authorization has to be done carefully and in a fashion that the voters can see. In crafting a workable balance between the competing concerns presented by initiative-sponsor standing, federal courts should recognize the possibility of sponsor standing, but only when the grant of power to sponsors to defend is clearly provided for in state law, so that the voters have adequate notice that when they adopt an initiative, they are in effect appointing certain persons to defend it in court.”

Professor Vikram continues, “It would be sensible for such explicit deputization to address, among other things: (1) precisely who within the proponent organization(s) is entitled to make key litigation decisions and concessions; (2) how long the sponsor’s power to defend lasts; (3) the question of attorneys’ fee liability to be satisfied by public fisc if the defense fails; and (4) what the relative authority of the initiative proponent and the Attorney General/Governor should be when public officials may decide to defend the measure, but to defend it in ways different from the litigation strategy favored by the sponsors.”

The key, he argues, is not whether sponsors are controlled by voters or state authorities, but rather “it is whether the sponsors were ever selected and given a discrete power by the voters in the first place. “

Interestingly enough, the professor argues that the sponsors would have failed this test.  “Nothing in California law in 2008… told voters that by adopting the measure they were also picking the sponsors as their agents.”

He argues going forward, “Fans of the initiative device in California and elsewhere should be able to specifically deputize sponsors as backup representatives of the State by saying so in the text of specific initiatives (or through some similar device that puts voters on notice that adoption of the initiative creates agency in the sponsors), and thus should have the means to prevent elected officials from frustrating direct democracy simply by failing to defend measures that are challenged in federal court.  That this path wasn’t staked out by Chief Justice Roberts’s opinion is regrettable.”

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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11 thoughts on “UCD Professor Worries That Prop 8 Decision Will Harm Initiative Process”

  1. Matt Williams

    [i]Professor Vikram notes, “Elected officials should not be able to effectively defeat initiatives by simply not defending the measures against federal court challenge. This is especially problematic because the initiative device is derived from a concern that elected officials sometimes do not act in ways that are faithful to the people’s interests and desires.”[/i]

    The problem I have with Professor Vikram’s comment is that it ignores the reason why we have the three-part governmental structure in the United States . . . tyranny of the majority. One need go no further than [i]Loving vs. Virginia[/i] to see such tyranny in action. Direct democracy is not a fool proof way to make societal decisions, and I for one have no problem with the way the SCOTUS dealt with the Prop 218 issue.

  2. DH Mazur

    Concern about damage to the initiative process has been highly exaggerated. Standing became a problem in the Prop 8 case only because the initiative was so unusual. Prop 8 proponents were the only ones left to defend the measure because, unlike the typical initiative, no one could show individual harm when it was struck down as unconstitutional. In almost all circumstances, there is someone who disagrees with the fate of an initiative who also has a personal stake in the controversy, and therefore standing. Prop 8 was one of those very odd situations in which no one did. This is not a problem likely to recur.

    The proposal to add automatic “boilerplate” language to all initiatives authorizing proponents to defend is not a good idea. It’s unrealistic to think that voters weigh technicalities about standing in deciding whether to approve a measure. More importantly, state officials have an obligation to the people of California that proponents do not. I want those officials to make the tough calls on behalf of the people, not the proponents who have only narrow, self-interested motivations. If you don’t like the way that officials defend the people of California, then exercise your right to vote. But don’t hand over the well being of California to people who are not responsible for it.

  3. David M. Greenwald

    I tend to agree with the bulk of your point. Frankly I thought Anthony Kennedy’s point was well taken as well. This was a perfect storm in that the government declined to defend, no direct harm, etc. I frankly don’t know that giving standing the framers of the initiative is handing over the well being of California to people who are not responsible for it. It just gives them the right to defend a specific ballot initiative.

  4. medwoman


    I understand that those of us living in a sacramental marriage within our chosen faith are next to be betrayed!”

    Statistically speaking, far more betrayal of those living in a ” sacramental marriage within their chosen faith” is done by their partner than by any other group.

  5. Matt Williams

    Steve Hayes said . . .

    [i]”I understand that those of us living in a sacramental marriage within our chosen faith are next to be betrayed!”[/i]

    My wife and I are living in a sacramental marriage within our chosen faith, and should any betrayal of that marriage happen, it will have to come from the faith itself, since only the faith and the two of us have standing. The government has none.

  6. K.Smith

    [quote]I understand that those of us living in a sacramental marriage within our chosen faith are next to be betrayed! [/quote]
    How, precisely, do you figure?

  7. Frankly

    The libs will scream bloody murder when the Supreme Court acts to overturn one of their pet populist initiatives. But then libs are comfortable in their hypocrisy as they enshroud themselves in cloaks of social justice righteousness.

  8. J.R.

    [quote]The problem I have with Professor Vikram’s comment is that it ignores the reason why we have the three-part governmental structure in the United States [/quote]

    I don’t think you understood Professor Vikram’s comment.

  9. Matt Williams

    J.R. please feel free to explain Professor Vikram’s comment to me. I’m more than willing to listen.

    With that said, I believe I do understand his comment . . . both its strengths and its flaws.

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