INTRODUCTION I. SETTING THE SCENE: THE RELEVANT PRECEDENTS A. Pacific States: Direct Democracy Legitimized B. Karcher v. May: A State's Choice of Who May Invoke Its Interests C. Arizonans for Official English v. Arizona: Suggesting Karcher Could Apply to Direct Democracy D. The California Supreme Court and Ninth Circuit Rely on Karcher and Arizonans II. THE SUPREME COURT IN HOLLINGSWORTH: ENTER AGENCY A. The Majority and Dissent B. A Reversal of Pacific States in Article III Garb III. THE FEDERALISM COSTS OF AGENCY A. Discrimination Among State Citizens' Sovereign Decisions B. Legal Gamesmanship C. The State's Grievance is Not Truly "Generalized" CONCLUSION INTRODUCTION
On June 25, 2013, in an ideologically divided 5-4 opinion, the Supreme Court struck down section 4 of the Voting Rights Act--the coverage formula that had determined which jurisdictions were required to seek preclearance of changes to their election laws and redistricting plans. (1) In doing so, the Court issued a sharply worded decision emphasizing the "equal sovereignty" of the states. Writing for the majority, Chief Justice Roberts declared that section 4 represented a "dramatic departure from the principle that all States enjoy equal sovereignty." (2) Under our constitutional structure, the Chief asserted, "[s]tates retain broad autonomy in structuring their governments." (3) And, according to the majority, continuing a system where "one State waits nine months or years and expends funds to implement a validly enacted law," while "its neighbor can typically put the law into effect immediately, through the normal legislative process" conflicts with that "fundamental" constitutional principle. (4)
But what a difference a day can make. The very next day, the Chief came down starkly different when writing for another, more unusually aligned, (5) 5-4 majority. In Hollingsworth v. Perry, (6)the Court held that the proponents of California's popularly enacted ban on same-sex marriage lacked Article III standing to appeal a federal district court's ruling striking down that ban in the face of state officials' unwillingness to appeal. While the majority ostensibly did not "question California's sovereign right to maintain an initiative process," the majority nevertheless maintained that the lack of a formal, government-body-sanctioned agency relationship between the law's proponents and state officials was fatal to the proponents' efforts to invoke the state's interest on appeal. (8)
The Hollingsworth majority reached this holding despite precedent stating that it is enough, for Article III purposes, that state law permits a state's legislative body to invoke the state's interest in defending a law against constitutional attack. (9) Indeed, on the basis of that precedent the Ninth Circuit had held that it was California's "prerogative" as an "independent sovereign" to determine whether ballot proponents should be permitted to invoke the state's interest--as the California Supreme Court had explicitly interpreted the state's initiative laws to do. (10) Nevertheless, the Hollingsworth majority refused to defer to California's sovereign choice. (11)
Yet, since 1912, federal courts have declined to question the validity of direct democracy as a method for states to legislate or structure their governments. That year, the Supreme Court held in Pacific States Telephone & Telegraph Co. v. Oregon that a constitutional claim that alleges a state violates the Constitution's Guarantee Clause by using the initiative or referendum presents, by its "very essence," a non-justiciable political question. (14) Instead, the Court left it up to Congress to determine whether to seat the representatives of a state that chooses to make use of direct democracy. (15) Any other result, the Court wrote in Pacific States, would "authorize the judiciary to substitute its judgment as to a matter purely political for the judgment of Congress on a subject committed to it, and thus overthrow the Constitution." (16)
A century later, however, the Court has effectively done in Hollingsworth, through Article III, what it was unwilling to do through the Guarantee Clause in Pacific States. By mandating an agency relationship as a constitutional requirement for standing under Article III, the Court has made a political value judgment about the individuals or entities that should be able to step into the shoes of a state. The Court has decided--as a constitutional matter--what type of state government is desirable or, at the very least, what kinds of state actors will be recognized in federal courts. In effect, the Court has displaced the will of California's voters with its own idea about how state government should be structured. Whatever one thinks about the merits of a state's ban on same-sex marriage, any student of federalism should be disheartened.
If the Court takes seriously the equal sovereignty principle Shelby County so strongly championed a single day earlier, the holding in Hollingsworth undoubtedly offends that notion. (18) The Court's opinion discriminates by dividing states into at least two categories--with major implications for the defense of state laws in federal courts. In those states with a more traditional legislative setup, the legislators who pass a law may step in to defend that law in the place of state executive officials if state law so permits. In those states featuring the direct initiative, by contrast, the people who enact a measure have no method to step in and defend that law when executive officials decline to defend it, even if state law says otherwise. (19) In effect, as has happened in California, executive officials wield a significant veto power over the people despite the fact that direct democracy is explicitly intended as a means to bypass the state's elected officials.
As Justice Kennedy points out in his Hollingsworth dissent, the decision is set to have major implications. Twenty-seven states feature some form of direct democracy. (20) And "in light of the frequency with which initiatives' opponents resort to litigation, the impact of [executive officials'] veto could be substantial." (21) Anecdotal evidence indicates that the frequency with which executive officials refuse to defend state laws has increased recently. For example, in Illinois, Attorney General Lisa Madigan declined to defend the state's same-sex marriage ban that had been on the books since 1996. In Minnesota, both the Secretary of State and Attorney General announced that they would not defend a proposed voter ID initiative before it was even placed on the ballot. (23) In Nebraska, after a federal district court invalidated a state abortion screening law, the state's Attorney General refused to appeal that decision. Wisconsin's Governor and Attorney General both declined to defend a state law granting hospital visitation rights to gay couples, arguing that the law was inconsistent with the state's ban on gay marriage. (25) And state attorneys general have opined that they have an obligation not to defend unconstitutional laws or have outright stated they would vote against particular proposed constitutional amendments. (26)
Regardless of where one falls on the wisdom of California's same-sex marriage ban, then, the standing question at issue in Hollingsworth is set to have major consequences for a host of popularly enacted measures of all ideological and political stripes. When measures like these are passed by the people, and when the measure's challengers succeed in striking it down in federal district court, any refusal to appeal by state executive officials will be outcome determinative, regardless of whether a federal appellate court might find the people' s measure valid. That the Court has enshrined such an outcome in Article III certainly infringes on states' "broad autonomy in structuring their governments." (27)
This Note proceeds in three parts. Part I first discusses the Pacific States decision and its rationale and then proceeds to describe the relevant Supreme Court opinions prior to Hollingsworth that bear on the standing issue. Part II then describes the majority and dissenting opinions in Hollingsworth and explains why, in essence, the Court has upended the holding of Pacific States. Finally, Part III discusses several consequences that will result from the majority's implicit reversal of Pacific States in Hollingsworth.
SETTING THE SCENE: THE RELEVANT PRECEDENTS
To understand the gravity of the Supreme Court's decision in Hollingsworth, it is necessary to discuss the precedents through which the Court analyzed the question before it. Pacific States, while not discussed anywhere in the Hollingsworth majority or dissent, laid the foundation for direct democracy--and its reasoning has particular resonance in the wake of the Hollingsworth majority's holding. That case is discussed first, followed by those cases setting forth the state's authority to determine who may stand in its shoes in federal court.
Pacific States: Direct Democracy Legitimized
Since 1912, federal courts have not questioned the constitutionality of direct democracy at a structural level. That year, in Pacific States Telephone & Telegraph Co. v. Oregon, (28) the Supreme Court held that whether methods of direct democracy offended the Federal Constitution's Guarantee Clause was a non-justiciable political question.
The facts are straightforward. Oregon had amended its constitution in 1902 to permit legislation through direct democracy, (29) authorizing both the initiative and the referendum. Via initiative, Oregon's voters subsequently enacted a law that taxed telephone and telegraph companies. (31) One of the corporations subject to that tax, the Pacific States Telephone & Telegraph Company, failed to pay the newly promulgated taxes. In its answer to a state enforcement action to collect those taxes, Pacific States alleged, among other defenses, that Oregon's method of enacting...