Academic journal article Brigham Young University Law Review

Standing in for the State: Defending Ballot Initiatives in Federal Court Challenges

Academic journal article Brigham Young University Law Review

Standing in for the State: Defending Ballot Initiatives in Federal Court Challenges

Article excerpt


Recent case law effectively obliterates the defensibility of voter-enacted initiative measures that are challenged in federal court and that executive officials refuse to defend. The new requirements imposed by the Supreme Court not only exclude proponents of a given initiative from defending the initiative but also preclude almost all others who would defend it. This unique process of lawmaking allows the people to vote directly on issues and so it is, by definition, democracy at its finest. However, current law threatens its continued benefits.

The Supreme Court's opinion in Hollingsworth v. Perry1 violates what should be an important principle in federal decision-making: state sovereignty outweighs a bare desire for uniformity in federal law. The Supreme Court violated this principle when it decided that the initiative proponents could not represent the State of California unless they were agents of the state. The Court's only legitimate justification seemed to be a desire to preserve uniformity in the federal law.2 Though the Court framed the case in the context of federal standing, California's approval of the proponents' authority to step into the state's shoes was a question of state law as the decision only truly affected California and similar states. No valid federal interests were seriously implicated. By overruling the California Supreme Court on this issue, the Supreme Court severely undermined California's status as a separate sovereign.

The repercussions of this federal overreaching are severe, extending beyond the problem of undefended public initiatives. Thus, as the Supreme Court created the problem, the Supreme Court should mend the doctrine by allowing states to appoint their own defenders, even in federal court, as long as the state's intent is clearly communicated. While other remedies might allow for initiatives to be defended in some situations, those remedies are potentially flawed and provide an unnecessarily low level of protection to states and citizen initiatives. A change in the doctrine would allow for a much-needed bolstering of citizen initiatives and would restore a proper balance to the federalism system.

This Comment describes both the need for doctrinal changes and the direction such changes should take. Part II outlines the role of ballot initiatives in past and present American society, discussing their boon to the democratic process. Part III establishes a framework for the issues involved, with a discussion of the federal standing doctrine and cases leading up to Hollingsworth v. Perry. It then analyzes Hollingsworth in depth and reveals how ballot initiatives may soon become things of the past. Part IV argues that, based on federalism principles of state autonomy in deciding state issues, Hollingsworth is flawed and the only viable solution is for the Supreme Court to fix the law. Part V concludes.


The public initiative process began in the early twentieth century in reaction to state legislatures' unresponsiveness to the people's will.3 In California, "the progressive movement . . . that introduced the initiative power into [its] Constitution grew out of dissatisfaction with the then-governing public officials and a widespread belief that the people had lost control of the political process."4 Twenty-four states have now adopted the ballot initiative as a form of lawmaking.5 The people of those states proposed 2,421 initiatives from 1904 to 2012, and 984 were eventually approved and enacted into law.6

According to Justice Kennedy, "the popular initiative is necessary to implement 'the theory that all power of government ultimately resides in the people.'"7 Public initiatives are nonpartisan in nature,8 so conservatives, liberals, and libertarians are similarly likely to benefit from them. They are simply a method of lawmaking available to all people, regardless of their ideology, and their destruction would harm people of all political persuasions. …

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