Fixing Hollingsworth: Standing in Initiative Cases

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