In Hollingsworth v. Perry, the Supreme Court denied standing to proponents of the California initiative prohibiting same-sex marriage, who wished to appeal a federal district judge's decision declaring the initiative unconstitutional. As suggested by the dissent, Hollingsworth has severe consequences for the twenty-four states in which the people can bypass elected officials and legislate directly through the initiative. The Supreme Court has established a clear constitutional divide between state and federal standing requirements for initiatives. Whereas states provide generous standing to proponents so officials do not exclusively control the defense of the people's initiative process, the Supreme Court has instead narrowed federal defense of initiatives to state officials or state agents.
As federal litigation is virtually certain on most important initiatives, the Hollingsworth approach to standing distorts the initiative process, allowing government officials to nullify initiatives by refusing to defend them in federal court. They may do so for political as well as legal reasons, raising significant concerns for initiative drafters across the political spectrum. Federal standing doctrine creates an uneven playing field in which, often, no one is entitled to defend an initiative in federal court if officials refuse. A decision invalidating a measure thus becomes unappealable.
This Article analyzes state and federal approaches, and proposes multiple methods to resolve the standing gap exposed by Hollingsworth. First, a special attorney could be appointed to represent the state if government officials declined to defend a measure. Second, states could deputize proponents as state agents and fill in the elements found missing in Hollingsworth. Third, states could set bounties for defending an initiative, analogous to a qui tam action. Fourth, proponents could be given a financial stake by assessing a filing fee, refundable if they successfully defend their initiatives. Finally, states could follow the strategy accepted in United States v. Windsor by compelling officials to take the ministerial actions necessary to appeal a measure's invalidation even if they believed it unconstitutional.