“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