The Injury-in-Fact Barrier to Initiative Proponent Standing: How Article III Might Prevent Federal Courts from Enforcing Direct Democracy

Abstract

This article discusses whether states can ever statutorily vest initiative proponents with a particularized interest in the validity of their ballot measures that is sufficient to confer federal standing. Part I places this inquiry in the context of the Proposition 8 litigation. In Part II, I provide a brief overview of federal standing and discuss the purposes of the doctrine. In Part III, I address whether state law can vest proponents with a particularized interest in their approved initiatives, and I critique the delegation theory of initiative proponent standing relied upon by the California Supreme Court and the Ninth Circuit Court of Appeals. Ultimately, I conclude that the federal courts may be ill-equipped to enforce state direct democracy systems.

Keywords: Proposition 8, Article III, Standing, Initiative Proponent, Particularized Interest, Injury-in-Fact