Fixing Hollingsworth: Standing in Initiative Cases

62 Pages Posted: 3 Nov 2014 Last revised: 8 Nov 2014

See all articles by Karl M. Manheim

Karl M. Manheim

Loyola Law School Los Angeles

John Caragozian

California Supreme Court Historical Society

Donald Warner

Loyola Law School Los Angeles - Adjunct

Date Written: November 1, 2014

Abstract

In Hollingsworth v. Perry, the Supreme Court dismissed an appeal filed by the “Official Proponents” of California's Proposition 8, which banned same-sex marriage in California. Chief Justice Roberts’ majority opinion held that initiative sponsors lack Article III standing to defend their ballot measures even when state officials refuse to defend against constitutional challenges. As a result, Hollingsworth provides state officers with the ability to overrule laws that were intended to bypass the government establishment -- in effect, an "executive veto" of popularly-enacted initiatives.

The article examines this new "executive veto" in depth. It places Hollingsworth in context, discussing the initiative process in California, and the history of the federal lawsuit challenging Proposition 8.

An in-depth discussion of Hollingsworth follows. The particular issue presented by the appellants, their claim to standing based on their status as representatives of the People of California, and the Court's treatment of that issue, is scrutinized. This includes the Court's rejection of California law on the legal status of initiative proponents, and its adoption of the Restatement of Agency as the basis for Article III standing.

After concluding that Hollingsworth establishes an "executive veto" over the initiative process, the article proceeds to examine the potential effect of this in California and the thirty-six other “direct democracy” states.

Finally, the authors present a series of "fixes" to Hollingsworth’s executive veto. These could assure defense of initiatives in the future, protecting them from the fate that Proposition 8 suffered in Hollingsworth.

Suggested Citation

Manheim, Karl M. and Caragozian, John and Warner, Donald, Fixing Hollingsworth: Standing in Initiative Cases (November 1, 2014). Loyola of Los Angeles Law Review, Forthcoming, Loyola-LA Legal Studies Paper No. 2014-46, Available at SSRN: https://ssrn.com/abstract=2517990 or http://dx.doi.org/10.2139/ssrn.2517990

Karl M. Manheim (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-1106 (Phone)
213-380-3769 (Fax)

John Caragozian

California Supreme Court Historical Society ( email )

P.O. Box 1071
Fresno, CA 93714-1071
United States

Donald Warner

Loyola Law School Los Angeles - Adjunct ( email )

Los Angeles, CA
United States

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