December 17, 2010

Voter Confusion and the Single-Subject Rule: Prop. 26 as a Test-Case-in-Waiting, Part Two in a Two-Part Series

Cross-posted from

My prior column, Part One in this two-part series, introduced readers to Proposition 26, a state constitutional amendment adopted by California voters in November that (1) reclassifies many regulatory fees as taxes, thereby subjecting them to supermajority- and referendum-vote requirements under the California Constitution, and (2) changes the trigger for supermajority and referendum votes on tax increases.

Previously, only measures that would increase public revenues faced this high hurdle; following Prop. 26, a bill that increases taxes on any person (or corporation) must pass by supermajority and/or referendum vote, even if the bill reduces taxes overall.

Prop. 26, I explained, may be challenged on the ground that it violates the state constitution's "single-subject rule"--a rule meant to protect voters from "be[ing] misled as to the overall effect of [a] proposed amendment" by "improper emphasis . . . placed upon one feature."

In their arguments in the ballot pamphlet, and in the "Statement of Findings and Purposes" included into the text of the proposition, proponents of Prop. 26 highlighted the first reform (reclassifying "fees" as "taxes") and entirely ignored the second (changing the supermajority/referendum trigger).

Yet my last column concluded that a single-subject challenge to Prop. 26 would most likely fail under the law as it stands today. California courts have applied the prevailing test for single-subject violations leniently, mostly insensitive to the risk of voter confusion.

In this column, which concludes the series, I will explain how the courts may refine the test for violations so as to better realize the purpose of California's single-subject rule: to prevent initiative proponents from duping the electorate into adopting reforms that voters do not understand and would not support.

"Purpose" as Represented to the Electorate

The black-letter test for single-subject violations requires that "all of the parts" of a challenged initiative be "reasonably germane to each other, and to the general purpose or object of the initiative." There remains considerable ambiguity, however, about how judges should go about identifying a measure's "general purpose or object" -- as I explained in my last column.

Given the original rationale for California's single-subject rule, the courts should hold that the "general purpose or object" of a ballot initiative is the measure's central, public purpose as represented by proponents to the electorateand understood by ordinary voters.

So long as the principal components of a ballot proposition reasonably advance the measure's public purpose as ordinary voters understand it, the measure's adoption is unlikely to result from voters being misled as to the initiative's "overall effect" by "improper emphasis . . . placed upon one feature."

To be sure, there will often be doubt about what voters understand to be the public purpose of a ballot initiative. And different voters may see the same measure rather differently. But it would be easy enough for courts to implement the proposed approach using an objective "ordinary reasonable voter" standard, and guided by appropriate presumptions.

For example, the courts could hold that the purpose stated by the initiative's proponents in the ballot pamphlet is rebuttably presumed to be the public purpose as conveyed to and understood by voters. (Research by political scientists shows that many voters peruse the ballot pamphlet to get the gist of proponents' and opponents' arguments, and to see who supports and opposes the measure, although very few read and assimilate the detailed legislative analyst reports.)

That presumption might be rebutted with evidence of purpose as conveyed by proponents' mass-media advertising, or, less probatively, by purpose as discussed in news coverage. Opinion polls could furnish evidence of public understandings.

"Reasonable Germaneness" as Contextual: Preferences and Politics Matter

One more step is necessary to realize the original purpose of the single-subject rule. The courts actually have two options; either would suffice (the difference is mostly rhetorical).

One option is to interpret the reasonable-germaneness test not as a requirement of minimal means/ends fit, akin to the rational basis test familiar from equal protection jurisprudence, but as a contextual inquiry under which the "reasonableness" of a given level of "germaneness" varies with the nature of proposition at issue, the campaign for and against it, the preferences of the voters who supported it, and the proposition's margin of victory.

The second option is take the minimal approach to "reasonable germaneness," while expressly recognizing an alternative basis for single-subject invalidation--to wit, a showing that an electorally decisive number of the measure's supporters were confused about one of its component parts, and that once informed, they object to that part being included in the proposition.

A Hypothetical Illustrates the Problem with the Minimal Approach

Imagine that firms utilizing certain hazardous substances in the workplace are required to file detailed emergency-response plans with the state occupational safety agency. Following a horrific and widely-publicized accident, petitions are circulated for a ballot initiative that would require these companies to file emergency response plans with local governments as well, and that spells out in enormous and largely redundant detail precisely what must be included in the emergency response plan. (Assume that, prior to the initiative, it was open to local governments to request and receive firms' emergency response plans from the state agency.) The initiative establishes a modest penalty for noncompliance.

Buried in the measure's fine print is an exemption from all state taxation for the next one-hundred years for firms that meet two conditions: (1) the firm employs hazardous materials in the workplace; (2) during the last ten years or during the next ten years, the firm won (wins) an award from a named industry trade group for "outstanding safety practices."

There is little organized opposition to the measure, but the "Yes" campaign is pretty well funded--by a handful of corporations that recently won the award in question. The measure passes easily, on the strength of support from voters who still have terrifying images of the recent accident seared into their brains.

Does this initiative run afoul of the single-subject rule, thanks to the tax exemption? It certainly should.

The exemption does relate to the initiative's public purpose as understood by voters. (The public purpose is to prepare local governments to deal with industrial accidents, and the tax break arguably incentivizes firms to improve the plans they file with local governments.) But there can be little doubt that average voters who discerned and understood the tax exemption detested it, and that the exemption was not remotely necessary to achieve the initiative's public purpose.

Indeed, in light of the funders of the "yes" campaign, the fact that the bestower of the award (with its related tax break) is an industry trade group, and the doubtful relationship between the initiative as a whole and its public purpose, the initiative seems a paradigm case of "the potentially deceptive combination of unrelated provisions at which the [single-subject rule] is aimed."

Lessons for the Courts

This hypothetical suggests that courts concerned with voter bamboozlement should apply the "reasonable germaneness" test in a relatively stringent fashion where (1) the allegedly "separate" subpart of the proposition is substantively objectionable for well-informed voters who support the rest of the measure; and (2) the "No" campaign was poorly funded, or there is other evidence indicating that many "Yes" voters misunderstood or were unaware of the objectionable subpart.

Other circumstances will call for relatively lax applications of the reasonable-germaneness test. For example, if the allegedly separate subpart is found in a comprehensive, complex initiative that responds to a large, difficult problem, the courts should treat it gently (other things equal). Inevitable imperfections of drafting and judgment should not lead to the invalidation of reasonable efforts to use the initiative as a battering ram against social and political problems that the legislature won't touch. (See the concurrence of Justice Werdegar in Manduley.)

Nor should ballot initiatives be invalidated simply because they contain a section which, though functional vis-à-vis the measure's purpose and other parts, lacks independent majority support. (A point recognized in Brosnahan v. Brown.)

And courts should be more lenient whenever the proposition's description on the ballot itself fairly discloses the putatively "separate" part at which the single-subject challenge aims. (Recent work by political scientists indicates that ballot-level descriptions of initiative measures have a substantial effect on vote choice.)

Implications for Proposition 26

How does Prop. 26 fare under the framework I have sketched? Not well.

The first and potentially decisive point is that the public purpose of Prop. 26 was to close the loophole that enabled state and local lawmakers using clever nomenclature (labeling taxes "fees") to end-run the California Constitution's supermajority- and referendum-vote requirements.

Subjecting so-called "hidden taxes" to "the same vote requirements" that apply to regular taxes was the only objective stated in the proponents' argument in the voter guide, and in the findings-and-purposes section of the proposition itself. No doubt it was also the purpose conveyed to the electorate through mass-media advertising.

If "purpose" within the meaning of single-subject doctrine is purpose as represented to the electorate and understood by ordinary voters, then Prop. 26 looks quite vulnerable. Changing the existing trigger for a supermajority or referendum vote is not even rationally related to the stated objective of subjecting "fees" to the trigger that had applied to taxes.

This, arguably, is the end of the matter. A court ruling on Prop. 26 need not reach the question of whether "reasonable germaneness" is properly understood as a contextual inquiry that accounts for the likelihood of electorally decisive voter confusion, or whether the single-subject clause supports a separate, stand-alone test--a supplement to the "reasonable germaneness" inquiry--for claims predicated on voter confusion about subparts to which well-informed voters object.

But if the courts were to look further, they would discover additional reasons to invalidate Prop. 26--if, as the California Supreme Court has said, the "principal purpose" of the single-subject rule is "to avoid confusion of . . . voters . . . and to prevent the subversion of the electorate's will."

Most importantly, as my prior column explained, conservatives, liberals, and moderates alike who understand the new trigger are likely to find it objectionable on the policy merits. It will benefit the tobacco, oil, and alcohol interests that funded the Yes-on-26 campaign, but not ordinary taxpayers or principled ideologues. In the scholarly lingo, the new trigger is a rider, a disfavored public policy piggybacking on an otherwise popular reform.

It is one thing for voters to be confused about a matter to which they are indifferent on the merits; it is quite another for them to be misled about a reform to which they would object.

Also significant is that the election was very close. A vote swing of 2.5 percentage points would have changed the outcome. Given that most "Yes" voters likely would disfavor the new supermajority/referendum trigger in a world of full information, voter confusion probably determined the election outcome. This assumes, of course, that a significant share of "Yes" voters were obtuse to the trigger issue.

Prop. 26's Supporters Have Some Arguments to Raise -- But None Is Persuasive

Defenders of Prop. 26 have a couple of cards they could play in response (accepting for now the doctrine I have urged). One, they might point to the legislative analyst's statement in the voter guide, which clearly explains the change to the supermajority/referendum trigger.

But as I argued earlier, legal analysis under the single-subject rule should reflect the practices and capacities of "ordinary reasonable voters," and few propositions would command wider assent among political scientists than that ordinary voters do not read and assimilate the legislative analyst reports in California's mammoth voter guides.

Second, Prop. 26 defenders could point to the financial resources of the "No on 26" campaign. While the "Yes on 26" campaigns raised nearly five times as much money as the "No" campaign, the "No" campaign did amass several million dollars. Whether opponents had enough money to reasonably inform the electorate about the new trigger is doubtful, however, given that the issue is technical and not amenable to catchy sound-bite advertising, and given the expense of mass-media advertising in California.

Needless to say, anyone thinking of bringing a single-subject challenge to Prop. 26 would do well to conduct opinion and knowledge surveys of California voters posthaste, so as to better understand what "Yes on 26" voters knew about the reforms they wrought.

Larger Objections, Briefly Answered

There are at least two substantial objections to my confusion-centric approach to the single-subject inquiry. One is that, as an interpretive matter, it is too far removed from the text and history of the California Constitution.

Professor Daniel Lowenstein maintains that the drafters of the 1948 single-subject amendment meant to apply to constitutional ballot initiatives the same standard that had long been applied to legislation. This plausible understanding was accepted in a contemporaneous decision of the California Supreme Court.

Moreover, the "plain meaning" of the constitutional text arguably calls for an abstract inquiry into the "subject(s)" of a challenged measure, not an assessment of voter beliefs and political context. (But my approach does not flaunt the text. It requires, among other things, that the initiative contain a discrete "part" about which voters were confused.)

Whether one sides with Lowenstein's approach or my own probably boils down to essentially unarguable differences of jurisprudential disposition. If you believe, as I do, that constitutional provisions should be read flexibly, in light of changed conditions, to realize the ratifiers' purposes, then you'll favor my approach. (Consider the role of the initiated constitutional amendment in California governance circa 1948, and circa 2010.) If you don't, you won't.

The other objection is that my approach would politicize single-subject adjudication. Professors Rick Hasen and John Matsusaka have provided evidence that judicial application of the single-subject rule is heavily influenced by judges' partisan affiliations in states with demanding single-subject tests, but not in states like California with deferential doctrines.

I have three responses to the politicization worry. First, as many scholars have noted, the conventional "demanding" approach to the single-subject rule consists of a subjective inquiry into whether the parts of a ballot measure have something in common.

My approach provides vastly more guidance to judges. It centers the "purpose" inquiry on what the initiative proponents represented to the electorate, and it ultimately resolves into a question that can be answered more or less objectively: Did the initiative contain a discrete subpart that a decisive number of "Yes" voters did not understand and (once they understand it) do not like? There would be hard cases from time to time, but this is true of most areas of law.

Second, it would be a mistake to characterize single-subject adjudication as predominantly partisan or ideological. Professor Michael Gilbert's ingenious empirical research shows that legal variables (both express and implicit) explain much more of the variation in single-subject decisions than do ideological variables, even under the current mushy standard. To the extent that the legal test can be focused and refined, extra-legal considerations are likely to have even less sway.

Finally, if the California Supreme Court becomes anxious about judicial partisanship in single-subject adjudication, it is open to the Court, as a prudential matter, to bar voter-confusion/single-subject invalidations except in cases where the "secondary part" of the proposition is substantively undesirable from both liberal and conservative perspectives. This would make the doctrine harder to apply, with a straight face, in a manner that narrowly advances judges' personal political preferences. But it would not save Proposition 26.

December 17, 2010

An Additional Post-Mortem on the Ninth Circuit Oral Argument in the Proposition 8 Case

Cross-posted from

By Vikram Amar

Analysts of the same-sex marriage legal saga are trying to read the tea leaves from the U.S. Court of Appeals for the Ninth Circuit's oral argument held last Monday. The argument took up the federal constitutional challenge to California's Proposition 8, a state constitutional initiative limiting marriage to a union between a man and a woman.

My FindLaw colleague Professor Michael Dorf offered some insightful commentary on the oral argument on this site earlier this week; Professor Dorf's column (along with many of my own, including the one posted here) provides much of the essential background that any reader interested in the Proposition 8 litigation should consult.

In my column today, I offer additional observations on the hearing. Some of my suggestions build on Professor Dorf's thoughts, and some of my reactions diverge from his take.

Issue One: Standing and Certification

As followers of the Proposition 8 case know, there is a serious question about whether the official sponsors of the initiative have standing in federal court to appeal the ruling by U.S. District Court Judge Vaughn Walker that Proposition 8 violates the Fourteenth Amendment. After all, Proposition 8's sponsors were not elected by the people of California to speak on their behalf, the way the Governor and Attorney General are.

On this standing question, the Ninth Circuit judges floated an interesting possibility at oral argument: The federal courts could "certify" a question to the California Supreme Court to get its view about whether California state law authorizes sponsors to defend initiatives when elected officials (i.e., the Governor and the Attorney General) do not. (Certification is a device by which state courts give answers to federal judges on the meaning of unclear state law when state-law interpretation is central to a question the federal court is being asked to decide.)

In theory, the certification device helps federal courts avoid misunderstanding, and thus misapplying, state law. In practice, however, certification often doesn't work particularly well. For starters, state courts frequently don't answer the certified questions clearly. There are many reasons why state law might not be so obviously clear that federal courts can figure it out on their own; one such reason might be that state courts (for political or other reasons) don't want to provide clear answers to some state-law questions. And if the ambiguity in state law is semi-intentional, it is not uncommon for state courts to passively resist providing the guidance that certification seeks.

Moreover, there are other reasons why, in the Proposition 8 case in particular, certification -- while interesting -- may not ultimately be a productive route. Most importantly, it is not clear that any answer the California Supreme Court might give about state-law authorization for initiative sponsors to defend would address the key question the Ninth Circuit must resolve: whether Article III of the federal Constitution, which limits federal courts to "cases" or "controversies" is satisfied if the only parties on one side of a litigation are an initiative's sponsors.

It is true that the United States Supreme Court has hinted that a state law that "appoint[s] initiative sponsors as agents of the people of the state" might suffice to confer standing in federal court. But even if the California Supreme Court says that California law in practice permits sponsors to defend in state court when elected officials won't do so, such a practice, especially when it is not widely known, might not constitute the kind of "appointment" that is necessary to qualify in federal court and to overcome the fact that initiative sponsors aren't generally elected by the people. (For more background on the virtues of formal election or appointment of agents purporting to represent the people, readers will find my earlier column posted here helpful.)

The Ninth Circuit Judges (and Professor Dorf) did seem troubled by the fact that, if sponsor standing in federal court is not permitted, an initiative adopted by the people might die simply because elected officials decide not to defend it. As Professor Dorf put the point, "[i]ndeed, the whole point of the ballot-initiative process is to permit the People to adopt laws and state constitutional provisions that their elected officials do not favor." But as my colleague Alan Brownstein and I have pointed out, there is a way of addressing that concern and still accommodating the discomfort that many rightly feel about allowing the self-appointed sponsors of an initiative to speak on behalf of an electorate that might not agree with them on all particulars. Our middle-ground proposal was to require a plain statement -- that is, one either made explicit in state law or placed in the text of particular initiatives -- that deputizes sponsors to defend when elected officials don't. That way, sponsor standing can exist to make the initiative device meaningful, but the people who adopt an initiative at least can know for sure who might be speaking on their behalf in federal court, and can then take that into account when deciding whether to enact the measure.

Finally, I should note one underappreciated possible virtue of the certification route in the Proposition 8 matter -- certification will take time. Many (myself included) think that the Proposition 8 challengers would have been wiser to wait a bit longer before bringing their case, so that the issue of same-sex marriage could percolate in other states for more time before the U.S. Supreme Court takes it up. Certification -- because it can consume well over a year -- may slow the Proposition 8 litigation down in a way that might be beneficial.

Issue Two -- Remedy: What Should Be Done If No Party Defending Proposition 8 Has Standing?

Professor Dorf astutely observed that "perhaps the most surprising aspect of the [standing] portion of the oral argument was the nearly complete inattention to a key remedial question: If the court finds [that the sponsors and all others who are trying to intervene lack standing] what happens next?"

Although the parties disagree on what should happen in this instance, it remains hard for me to see how the Ninth Circuit could avoid vacating (that is, in effect, erasing) the entire opinion issued by District Judge Walker. If there is no Article III case or controversy at the Ninth Circuit today, then how could there have been one at trial? And how could any opinion resulting from a trial that was not a case or controversy -- as the U.S. Constitution, in Article III, requires for federal-court jurisdiction-- possibly stand?

To be clear, vacating Judge Walker's opinion would not leave the Proposition 8 challengers without recourse; they would simply win a default judgment giving the named plaintiffs only the narrowest form of relief they seek -- their particular marriage licenses. But any judicial order that is broader than that would be hard to square with the very essence of any determination that the sponsors lack constitutional standing.

And the U.S. Supreme Court has suggested in a variety of settings that courts must vacate judgments where there was no case or controversy at the time of adjudication. Perhaps most directly relevant is Karcher v. May, a key case in the standing battle. There the U.S. Supreme Court held that individual state legislators, representing themselves and not their legislative bodies, lacked Article III standing at the Supreme Court to defend a statute that was not being defended by the state's elected executive officials.

These legislators had been the leaders in their respective legislative chambers before the last election, and in their capacity as legislative leaders they had represented each of the legislative houses in defending the statute in the litigation in the lower federal courts. After the U.S. Supreme Court determined that these individual legislators -- who no longer represented their legislative bodies -- lacked standing, it confronted the question of whether it had to vacate the rulings in the lower courts. The Court concluded that it did not need to erase the lower-court rulings, but only because it found the standing of the legislators on behalf of the legislature itself in the lower courts to be valid: "Since the New Jersey Legislature had authority under state law to represent the State's interests in both the District Court and the Court of Appeals, we need not vacate the judgments below for lack of a proper defendant-appellant."

The implication of this language to me seems to be that if there had been no proper standing in the lower courts, then vacating the lower-court rulings would indeed have been the required course.

Issue Three: The Relevance of Romer

One of the suggestions of the Proposition 8 challengers has been that the repeal of an existing right under a state constitution is more troubling than the failure ever to recognize the right in the first place, and that since Proposition 8 is a repeal, it is particularly problematic.

But as I pointed out in an earlier column (and as Professor Dorf agrees), this reasoning seems foreclosed by the U.S. Supreme Court case of Crawford v. Los Angeles Board of Education, where the Court made clear that a state can experiment in the direction of creating rights without having to worry about whether it is forever locked into recognizing those rights.

But Professor Dorf finds a different U.S. Supreme Court case -- Romer v. Evans -- to be of more help to the Proposition 8 challengers. In that 1996 ruling, the Supreme Court struck down a Colorado ballot measure, Amendment 2, that withdrew the right of gays and bisexuals to assert claims of discrimination based on their sexual orientation. Professor Dorf views that case as being driven by the Court's finding of impermissible motive on the part of the Colorado voters, and argues that an impermissible motive might also plague Proposition 8 (especially if Judge Walker's trial findings are to be credited.)

I view Romer as somewhat more complicated, and as not necessarily speaking to the issue of gay marriage. Put to one side the fact that Amendment 2 targeted people because of their gay or bisexual "orientation." (The orientation/conduct line with respect to sexuality might be a hard one to draw, and it is tough to decide whether marriage definitions are about orientation or conduct.) I see two features of Amendment 2 -- breadth and unusualness -- that were important to Romer's result but that are not present in Proposition 8.

First, let's consider breadth: Amendment 2 was breathtaking in its scope, preventing gays and bisexuals from invoking the law's protection across the entire range of the public and private spheres. Public and private education, employment, housing, etc., were all covered by the Colorado initiative. By contrast, Proposition 8 speaks to marriage and marriage only. Marriage is, of course, a hugely important arena, but it is still only one arena. And Justice Kennedy, writing for the Court in Romer, repeatedly commented on the problematic "sweeping and comprehensive" character and "reach" of the Colorado initiative.

Second, and perhaps more important, there is the issue of unusualness: Amendment 2 was one of a kind. As far as I know, no state had before, or has since, tried to pass a law seriously resembling it. By contrast, Proposition 8 -- no matter how unjust it seems to me and other opponents -- is in the national mainstream; more than 40 states refuse to confer the marriage label on same-sex unions.

I am not arguing, of course, that if enough people are violating the Constitution, the violations should be overlooked. Instead, I am observing that the U.S. Supreme Court, especially in the area of fundamental liberties of autonomy and intimacy, has historically felt more comfortable proclaiming a national right when there is clearly a national trend in the direction of right being asserted.

For example, by the time the Court recognized a federal right to interracial marriage in Loving v. Virginia in 1967, Virginia was, as the Court itself noted in its opinion, one of only 16 states that prohibited and punished marriage between the races. And over the previous decade-and-a-half leading up to the case, more than a dozen states had repealed their bans on interracial marriage. Even in the context of gay rights, the law struck down in Romer was, as I've just mentioned, very unusual, if not unique. And the Texas law banning gay sex that was struck down in Lawrence v. Texas -- the other blockbuster Supreme Court case involving gay rights -- was also very much of an outlier; Justice Kennedy's opinion in that case pointed out that there were only four states that had and enforced such laws.

In saying all of the above, I do not mean to contend that the Supreme Court couldn't use Romer to invalidate Proposition 8. Rather, I am suggesting that the Justices who voted to strike Amendment 2 could easily see the two situations as distinguishable, at least right now.

December 17, 2010

The Dark Side of the Internet: Privacy, Defamation, and Free Speech

Harvard University Press just sent me a copy of the new book, The Offensive Internet, edited by University of Chicago law professors Saul Levmore and Martha Nussbaum (each of whom also contributes a chapter in the book). 

The book is an important antidote to the often Panglossian approach of early cyberspace enthusiasts.

I contributed a chapter titled "Youthful Indiscretion in the Internet Age." It's a collection of thoughtful papers. While you are likely to disagree with many of them (as I do), the papers each make significant contributions to the literature.

December 16, 2010

Voter Confusion and the Single-Subject Rule: Prop. 26 as a Test-Case-in-Waiting, Part One in a Two-Part Series

Cross-posted from FindLaw.

In 1948, the people of California amended their constitution to establish a "single-subject rule" for constitutional amendments enacted by ballot initiative. Writing in the official ballot pamphlet, proponents argued that "[t]he busy voter does not have the time to devote to the study of long, wordy propositions and must rely upon such sketchy information as may be received through the press, radio, or picked up in general conversation."

The single-subject rule was necessary, proponents said, lest voters "be misled as to the over-all effect of [a] proposed amendment" by "improper emphasis . . . placed upon one feature . . . ."

Last month, the people of California narrowly adopted little-noticed Proposition 26, an initiated constitutional amendment whose fate will tell us much about whether the original, animating purpose of California's single-subject rule lives on today.

The Effect of Proposition 26

Prop. 26 does two things. First, it reclassifies many so-called regulatory fees as taxes, bringing them within the coverage of California's legendary Proposition 13 (which established supermajority-vote requirements for state and some local tax increases) and Proposition 218 (which established referendum and supermajority requirements for many local taxes).

Second, Prop. 26 changes the trigger for the supermajority/referendum requirement. Previously, a tax bill only faced this hurdle if it would result in a net increase in government revenues. Prop. 26 specifies, however, that a bill that increases taxes on even a single taxpayer must clear the hurdle, whatever its net effect.

So does Proposition 26 have two "subjects" or one? The standard doctrinal test for single-subject violations holds that a challenged initiative is permissible only if "all of its parts are reasonably germane to each other, and to the general purpose or object of the initiative."

If the courts may infer a "general purpose or object" from the substance of the measure, then Prop. 26 should pass this test with ease. Both of its parts cohere with the common purpose of protecting the reliance interests that some taxpayers may have in not being burdened with additional fiscal obligations to the state.

Yet this was not the purpose sold to the electorate, or stated in the proposition's "Findings and Declarations of Purpose." Prop. 26 was plainly and simply marketed as a loophole-closing measure, one which would stop politicians from evading Prop. 13 with revenue measures labeled "fees."

Not once does the proponents' argument in the ballot pamphlet even mention the new trigger for supermajority and referendum votes ("higher taxes on anyone, regardless of net revenue effects"). In all likelihood, the vast majority of Californians who voted "Yes" on Prop. 26 had no idea they were changing the trigger. And, importantly, they might well have reconsidered their vote had they understood it.

Conservatives should hate the new trigger because it subjects revenue-reducing and revenue-neutral bills to the supermajority/referendum requirement (insofar as the bill raises taxes on anyone). This will make it harder to reduce the overall size of government and to substitute new sources of revenue for the most incentive-destroying taxes presently found in the code.

Liberals should hate the new trigger because it makes it harder to achieve their public health, safety, and environmental goals (by replacing existing taxes with fees on pollution and unhealthful products).

And voters in the middle should hate the new trigger because they are the likely beneficiaries of any legislation that reallocates burdens across taxpayers without increasing taxes overall.

The only interests that stand to benefit from the new trigger are the oil, tobacco, and alcohol groups that funded the "Yes on 26" campaign. If the single-subject rule aims to thwart the bamboozlement of voters, Prop. 26 looks like a ripe target indeed.

In the remainder of this column, I'll assess the vulnerability of Prop. 26 under current law. In a companion piece to be published tomorrow, as Part Two in this series, I'll offer some doctrinal refinements that would better mesh California's single-subject jurisprudence with the purpose of the rule.

"Reasonably Germane" . . . to What?

As noted above, the California Supreme Court has implemented the single-subject requirement by assessing whether "all of the parts" of a challenged measure are "reasonably germane to each other, and to [the measure's] general purpose or object."

This test is conventionally lax. Dozens of initiatives were challenged unsuccessfully before, in Senate v. Jones (1999), the California Supreme Court finally vindicated a single-subject claim.

Jones, for present purposes, is less important for its holding than for what the Court said about voter confusion and how the Court conducted the reasonable-germaneness inquiry. Oddly enough, what the Jones Court said and what it did have strikingly different implications for Prop. 26.

Begin with voter confusion. Citing the 1948 ballot pamphlet, Jones explains that the "principal purpose of the [single-subject rule] was . . . to avoid confusion of either voters or petition signers and to prevent the subversion of the electorate's will." Jones then offers a lengthy and approving discussion of California Trial Lawyers Association v. Eu (1988), in which the intermediate court of appeals struck down a no-fault insurance proposition that included a suspiciously inconspicuous section. That section insulated the insurance industry against targeted campaign-finance regulations, and declared that legislators who receive lawful campaign contributions from insurers (among others) shall not be disqualified from participating in donor-affecting decisions.

Because there was neither a "reasonably discernable nexus between thestated object of the initiative[, lowering the cost of auto insurance,] and the campaign-finance and conflict-of-interest provisions," nor "any reference to those provisions in the initiative's ballot title and summary, or its statement of findings and purposes," the California Trial Lawyers Court concluded that the initiative at issue was an exemplar of "the potentially deceptive combination of unrelated provisions at which the [single-subject rule] is aimed."

Though it lauds California Trial Lawyers, Jones leaves some doubt about whether the "purpose" that grounds the reasonable germaneness inquiry must be the same purpose that the measure's proponents represented to the voting public. Jones evaluates the challenged initiative in terms of several hypothetical purposes advanced by proponents' lawyers, without stopping to consider which purposes actually informed voters' understanding of the proposition. In leading cases upholding ballot initiatives against single-subject challenges, however, the California Supreme Court has relied on purposes stated in or readily inferable from the measure's title and ballot summary.

In light of that practice, and of Jones's celebration of California Trial Lawyers, it is entirely possible the discussion of hypothetical purposes in Jones served only to illustrate just how badly the challenged initiative ran afoul of the single-subject rule. But Jones does give defendants an opening to argue that single-subject challenges may be met and defeated by showing that the component parts of a proposition are reasonably germane to a hypothetical purpose. Under that test, a single-subject challenge to Prop. 26 would, as noted above, almost surely be a loser--subject to one important caveat.

A Separate Test for Voter Confusion?

The caveat is this: it's not settled that a finding of "reasonable germaneness" necessarily ends the single-subject inquiry. In several cases, the California Supreme Court has considered (and rejected on the merits) plaintiffs' voter-confusion arguments after having concluded that the germaneness test was satisfied.

These precedents give plaintiffs a doctrinal toehold to argue that irrespective of "reasonable germaneness," a single-subject violation may be found in certain cases where voters were substantially confused about an important subpart of the proposition.

Alas, what the California Supreme Court has actually said in response to voter-confusion arguments flies in the face of everything that political scientists now understand--and that proponents of the single-subject rule intuited back in 1948--about how ordinary citizens vote on ballot propositions.

In Manduley v. Superior Court (2002), for example, the majority stressed that an allegedly obscure and confusing subpart of the ballot initiative had been carefully explained in the legislative analyst's report found in the voter guide. "We must assume," the majority wrote, that "the voters duly considered and comprehended these materials."

Justice Carlos Moreno, concurring, challenged this assumption: "[W]hile it is to be hoped that voters carefully study their ballot guides, the realistic premise behind the single-subject rule is that many voters do not . . . ."

The Bottom Line

Where does this leave Proposition 26? On one hand, the story of Prop. 26 resembles in important respects the story of the proposition invalidated in California Trial Lawyers. Prop. 26 includes a peculiar provision (the new trigger for supermajority/referendum votes) that has no "reasonably discernable nexus" to the purpose declared in the text of the measure and represented by its proponents to the electorate (to wit, closing the "fee label" loophole). And, as in California Trial Lawyers, the secondary provision was not noted in the description of Prop. 26 on the ballot.

On the other hand, the history of single-subject adjudication in California has been a history of judicial laxity, and the courts certainly could impute a purpose to Prop. 26 that would encompass all of its provisions, or naively conclude that both the hidden and the overt components of Prop. 26 relate to the subject of "tax limitations."

As for the risk of voter confusion, the courts could say that this is not an independent basis for single-subject invalidation, or, if it is, that the legislative analyst's careful explanation of Prop. 26, coupled with Manduley's presumption that voters "duly consider and comprehend" the analyst's report, vitiates the plaintiffs' argument.

If I were a betting man, I'd bet against a single-subject challenge to Prop. 26. But by trade I'm a law professor, not a gambler--and I'm a professor who shares Justice Moreno's conviction that the single-subject jurisprudence has too often drifted from the original purpose of the single-subject rule.

So in my next column, Part Two in this series -- which will appear tomorrow on FindLaw -- I will offer some thoughts on how to make single-subject doctrine responsive to the risk of voter confusion, and what this implies for Prop. 26.

December 10, 2010

DREAM Act holds promise of economic stimulus for state

Cross-posted from the Sacramento Bee op-ed co-authored with Marielena Hincapié, executive director of the National Immigration Law Center, published on November 28.

As early as this week, Congress might decide the fate of thousands of young Californians who would like to fully contribute to our economy, but currently are unable to do so because of their immigration status. The House of Representatives and the Senate plan to vote on the DREAM Act, which would provide undocumented young men and women of good moral character who attend college or enlist in the armed services with a pathway to citizenship.

Even if they lack the right papers, the young people who would benefit from the DREAM Act are unquestionably American. Many were brought to the United States as infants by their parents and do not remember life in the countries of their birth. Some do not even speak the language of the nations that were once home. Fighting long odds and overcoming numerous barriers, they have excelled in our educational system. Moreover, they have been members of our church congregations, Little League and soccer teams, attended our schools and become friends of our children.

The DREAMers, as undocumented students are called, now want to participate as full members of society by using their education to contribute to the work force – and work legally. Congress should act now and make that possible.

DREAMers are already integral components of our colleges and universities. Recently, the nation learned that Pedro Ramirez, who was elected by his classmates to be the student body president of California State University, Fresno, was undocumented. Co-valedictorian of his high school, Ramirez has excelled in college. How many parents would dream of having their child be student body president? Having lived in this country since he was 3, Ramirez did not even know that he was an undocumented immigrant until he began the college application process.

Because of his immigration status, Ramirez has served as student body president but, to avoid violating the law, declined the customary $9,000 stipend. So much for the stereotype that undocumented immigrants are unabashed lawbreakers. The stipend would have helped Ramirez immensely. As an undocumented student, he is not eligible for federal or state financial assistance and educational loans.

Thousands of young men and women just like Pedro Ramirez have worked hard and deeply want to contribute to this – indeed, their – great nation. Unfortunately, unless Congress passes federal legislation, there is virtually no way for them to work legally. The Immigration and Nationality Act of 1952, the federal immigration law that Congress amends in piecemeal fashion almost annually, is woefully out of sync with the nation's current economic needs.

We all benefit by ensuring that the DREAMers can live the American dream. The DREAM Act would allow us to take a first, important step toward modernizing the U.S. immigration laws by allowing those who call this country home to be permitted to fully contribute economically to the nation's well-being.

For Californians, the DREAM Act holds the promise of improving a sputtering economy. More than 500,000 DREAMers live in California. With a college education or military training, these young people have the skills and education to jump-start the economy and create a more prosperous work force.

Moreover, common sense dictates that college-educated workers – workers whom Californians invested in by providing a K-12 education – earn more and contribute more in taxes than those without such an education. It is irrational not to capitalize on the state's investment in the DREAMers as well as to deny California's employers, and tax coffers, this valuable asset. In enacting Assembly Bill 540, the California Legislature reached a similar conclusion and ensured that all graduates of California high schools would be eligible for in-state resident fees at California's public colleges and universities, a law that the California Supreme Court recently upheld.

Some argue that Congress should wait to pass a more comprehensive solution to fix the nation's broken immigration system. We firmly believe that it unquestionably is the case that the nation must eventually create a system that meets the societal and economic needs of the United States. However, to paraphrase Voltaire, the "perfect" should not be the enemy of the "good." In our estimation, the DREAM Act would be a "good," even if not a "perfect," first step toward some kind of lasting, meaningful and practical immigration reform.

Californians face many difficult decisions in putting their economic house in order. By passing the DREAM Act, Congress can help provide a cost-neutral economic stimulus that will help the Golden State's future entrepreneurs, engineers, Web designers and community leaders to contribute fully to California's economy.

Note: I also signed on to a letter that was published in the Huffington Post.  Click here to read We Cannot Afford Not to Pass the DREAM Act: A Plea from Immigration Scholars.

December 3, 2010

Now That the Proposition 8 Appellate Judges Are Known, What Is The Likely Outcome?

Cross-posted from FindLaw.

Now that we know the identity of the three judges of the U.S. Court of Appeals for the Ninth Circuit who will hear the appeal in the case challenging Proposition 8 (California's ban on same-sex marriage), observers are trying to handicap the outcome. I too am guilty on occasion of getting caught up in the horserace aspect of litigation prediction, but in this column I explain why complex lawsuits, like racing forms, aren't for the faint of heart.

The Composition of the Ninth Circuit Panel

Guessing precisely how California's same-sex marriage legal saga will end up has been dicey business from the start; the litigations have already taken several dramatic and unexpected turns over the past five or six years. And the ideologically diverse composition of the three-judge panel in the Proposition 8 federal appeal doesn't make prognostication any the easier.

One member of the panel, Stephen Reinhardt, is by many accounts the most prominent old-school left-leaning judge on the federal bench -- a liberal lion who has served as an active member of the Ninth Circuit for over 30 years since Jimmy Carter appointed him at the end of Carter's presidency.

Another member, N. Randy Smith, was an experienced Idaho state court jurist before George Bush placed him on the federal circuit a few years ago. He has a less well-developed federal court of appeals track record, but his general background and prior decisions would seem to indicate he is instinctively quite conservative in his legal philosophy.

And the third member, Michael Daly Hawkins from Arizona, is a Clinton appointee who is considered, as are many Clinton appointees to the federal appellate bench, somewhat to the left of the national center, but generally moderate in philosophical instincts.

The Two Big Legal Questions Before the Panel of Judges

A panel comprised of a liberal, a conservative and a moderate would be hard enough to read in any big-ticket case. In the Proposition 8 dispute, things are far more complicated still.

One source of the complication is the fact that there are two substantial, distinct legal questions before the panel. The first is whether the sponsors of Proposition 8 have standing to defend the measure; if not (and if Imperial County also lacks standing), then, as I explained in my most recent column, Proposition 8 will likely die a quiet "default judgment" death in California (because neither Governor-elect Jerry Brown nor Attorney General-elect Kamala Harris will defend the measure.) But if Proposition 8 were to die this kind of quiet death, there would be no immediate legal implications beyond California's borders.

Only if the Ninth Circuit finds the sponsors have standing will it take up the merits of the constitutional challenge to Proposition 8 and decide the second question: whether there is a federal constitutional right to same-sex marriage.

On the latter question, perhaps it is reasonable to believe that "liberals" are more inclined to embrace a federal constitutional right than are "conservatives" (with "moderates" somewhere in between.) But on the standing question -- which concerns a somewhat technical doctrine about which I've written extensively here on FindLaw -- traditional ideological labels are less useful as predictive measures. This is partly because standing rules are often manipulated by judges -- both liberal and conservative -- for prudential reasons (including to pick the right time certain disputes should be resolved by the federal judiciary). And some liberals might prefer to see Proposition 8 die a quiet death than see it slain by the Ninth Circuit in a more prominent ruling on the merits, since the latter scenario is more likely to draw the generally conservative U.S. Supreme Court into the fray.

A Look at Judge Reinhardt's Likely Stance Alone Illustrates Why the Panel Holding Is Hard to Predict

But we don't even need to consider the overall makeup of the Ninth Circuit panel to see the complexity of this case and the difficulty of prediction. A look at just one of the panel members, Stephen Reinhardt, alone suffices to illustrate the intricacy of the litigation and its possible resolutions.

On the merits, Judge Reinhardt would probably agree with the challengers to Proposition 8 that the ban on same-sex marriage violates the federal Constitution. Indeed, although this fact has not yet garnered wide attention, he (along with Ninth Circuit Chief Judge Alex Kozinski, in a separate writing) has already expressed his opinion that the federal government's discriminatory treatment of same-sex couples, with respect to health-care benefits for spouses of employees in the federal judiciary, violates the Constitution.

While the Proposition 8 case raises a slightly different legal question than the health-care spousal benefits dispute raised, Judge Reinhardt is on record saying that he thinks discrimination against gays and lesbians by government is subject to so-called "heightened scrutiny," under which the government must produce a strong reason for the differential treatment. And most analysts, myself included, do not think bans on same-sex marriage can survive an honest application of heightened scrutiny.

But on the standing question, Judge Reinhardt has a personal track record that is harder to decipher. In particular, he wrote a Ninth Circuit opinion in the 1990s involving a challenge to an Arizona English-language-only initiative. That Ninth Circuit opinion conferred federal court standing on the initiative's sponsors. But it was that very opinion that was roundly criticized by a unanimous Supreme Court in language that has cast doubt on Proposition 8 sponsors' standing and that has caused the Ninth Circuit to devote so much energy to the standing question. (For much more on the standing issue, readers might want to consult this prior column and the earlier column to which it links.) Will Judge Reinhardt stick to his standing guns and hold that Proposition 8's sponsors do have standing? Or will he feel cowed by the unanimous, albeit non-binding, language from the Supreme Court in the Arizona case in 1997?

To be sure, many people describe Judge Reinhardt as somewhat defiant, but he also is the author of a well-known dissent in 1988, in Watkins v. U.S. Army, in which he said he felt constrained to follow a Supreme Court ruling even though he found it terribly wrong-headed. And it is interesting to note the context of that famous 1988 Reinhardt opinion: gay and lesbian equality rights. The case involved the Army's ban on gays and lesbians, and Judge Reinhardt dissented from a ruling by two other Ninth Circuit Judges (Judges Norris and Canby) striking that policy down. (Needless to say, the ruling by these two judges itself got undone; that is why we are still dealing with the "Don't Ask, Don't Tell" policy even today, although perhaps that policy will be rescinded soon by Congress.)

Finally, consider that the Supreme Court is thought to keep a particularly watchful eye on Judge Reinhardt (even more watchful than the eye some people think it keeps on the Ninth Circuit as a whole). His opinions have probably been reversed by the Supreme Court more times than those of any other sitting Circuit judge. That is partly because he's been around so long. But it's partly because he is reversed quite often. And he is also reversed lopsidedly quite often. In one Supreme Court year, his opinions were reversed unanimously -- that is, without a single Justice ruling in his favor -- in at least five cases, a whopping number given the rarity with which a lower court judge's rulings are even taken up by the high Court as a general matter.

So a Ninth Circuit ruling authored (or joined) by Judge Reinhardt invalidating Proposition 8 will likely catch the attention of the high Court and its law clerks all the more. (Remember, too, that the Supreme Court has already seemed to send a message that it is keeping tabs on this case when the Court unexpectedly -- and to my mind unjustifiably -- intervened a year ago, by a 5-4 vote, to stop U.S. District Judge Vaughn Walker from broadcasting the Proposition 8 trial to other federal court venues, in Hollingsworth v. Perry.)

Even if Judge Reinhardt would like to see a federal constitutional right to same-sex marriage recognized, will he think that a case in which he himself has played a large part is a good vehicle to accomplish that end right now, given the specter of Supreme Court review?

These and other questions will simply have to await the decision of the three-judge panel; its ruling will probably come down sometime during the first half of next year.

December 1, 2010

A Preview of Possible Outcomes of the Upcoming Proposition 8 Argument Before the U.S. Court of Appeals for the Ninth Circuit

Cross-posted from an earlier column on FindLaw

On December 6, the U.S. Court of Appeals for the Ninth Circuit will hear oral argument in the federal constitutional challenge to Proposition 8 -- California's voter-enacted ban on same-sex marriage. While the identity of the three judges to whom the appeal has been assigned won't be known until a week before the argument, the time is ripe to sketch out at least some of the possible outcomes of the Ninth Circuit proceedings.

On one hand, the Ninth Circuit might decide the merits of the constitutional challenge and affirm U.S. District Judge Walker's conclusion that Proposition 8 violates the Fourteenth Amendment because discrimination against same-sex couples in the marriage context violates their fundamental liberty rights under the U.S. Constitution's due process clause, and/or is irrational under its equal protection clause.

If that is the Ninth Circuit's final ruling (after any en banc battle that might occur in the wake of the three-judge panel decision), then the chances that the U.S. Supreme Court gets involved go up dramatically. Any broad opinion invalidating all the state bans on same-sex marriage in the Western states that fall within the Ninth Circuit would create a situation of national disuniformity that the Supreme Court would probably feel obligated to address (when asked by the Proposition 8 backers to review the case).

If, on the other hand, the Ninth Circuit reaches the merits and reverses Judge Walker, then the Supreme Court would probably not be inclined to get involved (when asked to do so by the challengers to Proposition 8).

The Ninth Circuit conceivably could reverse Judge Walker on the merits by holding that his due process and equal protection analyses were flawed. Alternatively, the Ninth Circuit might reverse Judge Walker by holding that a summary Supreme Court ruling from 1971 (Baker v. Nelson) binds lower courts to reject constitutional challenges to same-sex marriage bans, even if the Supreme Court itself might come out differently today. (For more on Baker v. Nelson, readers may want to consult my earlier column regarding this aspect of the Proposition 8 fight.)

Under either of these two possible rationales for reversing Judge Walker, I would expect the Supreme Court to stay out of the case. The Court probably has no zeal to take up the gay-marriage issue right now, and unless it is forced to do so by a ruling that creates national disuniformity, it will be happy to let things percolate in lower state and federal courts, state legislatures, and direct democracy processes.

A Key Uncertainty: Will the Ninth Circuit Even Reach the Merits of the Case?

One looming uncertainty, to which I have devoted previous columns (such as the one linked here) is whether the Ninth Circuit can or will address the merits of the constitutional challenge at all. In particular, there is a serious question whether the sponsors/drafters of Proposition 8 have "standing" in federal court to defend the initiative measure against constitutional attack.

A unanimous Supreme Court, in the 1997 ruling in Arizonans for Official English v. Arizona, seemed generally to call into question (albeit in a nonbinding part of its opinion) the standing of initiative sponsors to defend an initiative against constitutional challenge in federal court, at least when the sponsors have not been specifically deputized by the voters, and where the state's elected representatives have chosen not to defend. (Things might, and perhaps should (as I have written), be different if voters actually designate initiative sponsors as agents for litigation in the event that elected officials decline to defend; no such designation was made by the voters who enacted Proposition 8.)

The Ninth Circuit appears to be weighing the meaning of the Supreme Court's language and reasoning very carefully; it made mention of this Supreme Court case when it specifically instructed the parties in the Proposition 8 appeal to address the question of standing in their briefs and oral argument, and it issued an order earlier this week allocating one full hour -- half of the whole scheduled argument time of two hours -- to "standing and any other procedural matters that may properly be raised."

I am not sure what "other" procedural matters the court might have in mind, but devoting an hour (the usual amount of time allotted for an entire Ninth Circuit oral argument on a case, including the merits) to standing and related issues confirms the seriousness with which the Ninth Circuit appears to be taking them.

If the Proposition 8 Sponsors Lack Standing, What Happens Next?

Let's assume that the Proposition 8 sponsors are found to lack standing. What then?

For starters, the trial in Judge Walker's court and the lengthy opinion that the trial generated (striking down Proposition 8) would likely have to be vacated (that is, voided). Why? Because if the Proposition 8 sponsors lack standing within the meaning of Article III of the Constitution (which is what the Supreme Court language tends to suggest), then they were no more appropriate to be parties at the trial court than they are at the appellate level. And a trial without appropriate parties on one side should not have gone forward. Nor should the results of such a trial count for anything. (Recall that the Proposition 8 sponsors were the only defendants participating in the trial. The Attorney General and Governor did not take part, but essentially conceded that the plaintiffs were correct in their challenge.)

What if the Ninth Circuit finds -- at the same time that it concludes that the Proposition 8 sponsors lack standing -- that Imperial County (which has been trying to intervene to defend Proposition 8) should have been allowed into the case? Even then, I would think that vacating the original trial and resulting opinion would be the correct result. Perhaps a new trial -- with Imperial County now defending the initiative measure --would then be proper to conduct. But that possibility for the future doesn't alter the past: It doesn't change the fact that if the Proposition 8 sponsors were not valid parties, then the trial held last spring lacked any appropriate representative on one side of the case.

Should Imperial County Have Standing to Defend Proposition 8 in a New Trial?

As for whether Imperial County should be allowed to defend Proposition 8, I express no firm conclusion, but I have my doubts about the County's position. True, County officials -- unlike the Proposition 8 sponsors -- include elected representatives. But these county clerks are elected not by a statewide electorate. Instead, they are chosen by a local (and perhaps unrepresentative) constituency. For this reason, when issues (like marriage) arise that involve statewide legal systems and statewide policy concerns, letting counties speak on behalf of the state -- especially when executive officials who are elected statewide (like the Governor and Attorney General) disagree with the position that those counties are taking -- would seem to be problematic.

Indeed, that appeared to be one of the big reasons why the California Supreme Court held, in the early stages of California's same-sex marriage saga, that San Francisco county (led by Mayor Gavin Newsom) could not go its own way in 2004 in authorizing same-sex marriages when statewide policy (as determined by the legislature and Governor) was different. To administer statewide legal statuses like marriage, one would think that a state needs statewide officials (like Governors and Attorneys General) to be calling the shots about the enforcement, execution, and defense of the law.

An additional, related problem with recognizing Imperial County's standing arises from the large number of counties in the State. If counties are appropriate parties, and if different counties take different positions as to the meaning and validity of a state law such as Proposition 8, which counties' legal positions should the courts have to respect? To ponder this question is yet another way to see the need for a statewide official to arbitrate disputes within the state executive branch, in order to determine and promote singular, consistent executive enforcement and litigation strategies.

What If Neither Any County Nor Any Sponsor Has Standing to Defend Proposition 8? The Possibility of a Future Class Action

If Proposition 8's sponsors and Imperial County all lack standing, then what?

Presumably, the case would go back to the federal trial court in San Francisco to be processed as a "default" judgment. A default is a victory that the plaintiffs (the parties who sued) obtain when the defendants (or should I say, the appropriate defendants) decide not to defend in a lawsuit. A default judgment gives the named plaintiffs (in this instance, the same-sex couples represented by attorneys David Boies and Ted Olson) the particular relief that they seek (the marriage licenses they want). However, such a judgment would not generate an opinion on the merits that has any effect on, or meaning for, anyone else, today or in the future.

Where would such an outcome leave all the other same-sex couples in the State? It would leave them free to file their own lawsuits to obtain the same relief -- that is, to procure their own marriage licenses.

If a default is entered in the case filed by Boies and Olson a new lawsuit is brought by other same-sex couples, this new lawsuit should probably be styled as a class action, so that all same-sex couples throughout the state who want to marry would technically be the plaintiffs. (It's not clear to me why Boies and Olson did not seek class-action status in their case; perhaps they never imagined that the Attorney General and the Governor would not defend the initiative, and thus these lawyers assumed that their case would be heard on the merits in the Ninth Circuit and would generate a legal ruling that would cover all couples in the state no matter what.)

If a class action were certified, and if the Governor (who will be Jerry Brown) and the Attorney General then were to decline to defend, at that point Proposition 8 would be a dead letter in California for the foreseeable future. Granted, another Governor and Attorney General -- elected from a different point on the political spectrum -- could, down the road, try to reopen the judgment, based on a different view on whether Proposition 8 should be enforced and defended. But reopening judgments is tricky business, and is generally disfavored by courts.

One More Wild Card Regarding Proposition 8: The Result of the Still-Undecided California Attorney General Race

A final wild card: What effect might the final result in the still-unresolved Attorney General's race in California have, in the event that the Proposition 8 sponsors and Imperial County lack standing?

Republican Steve Cooley has said that he thinks Proposition 8 -- like most initiatives -- should be defended. Democrat Kamala Harris has indicated that she agrees with Attorney General Jerry Brown's decision not to defend Proposition 8. If Harris were to end up winning (and she had a lead in the count, as of yesterday), then things would be easier: Both the next Attorney General and the incoming Governor (Brown) would be on the same page.

If Cooley wins, then things are a bit more complicated. It's not clear to me that the new Attorney General could do much to change the state's litigation stance in the particular case filed by Boies and Olson (although that depends on the timing of any Ninth Circuit ruling sending the case back to the trial court, and also on technicalities of federal civil procedure governing cases on remand from the Court of Appeals back to the District Court). But Cooley, if he wins the election, would likely be in office at the time any subsequent challenges to Proposition 8 are filed by other same-sex couples.

In such an instance, if Governor Brown doesn't want to defend Proposition 8, and Attorney General Cooley does, who wins that clash? My tentative sense is that the Governor should prevail, but let us cross that tricky legal bridge only if we need to.