Prop 8 Advocates in Court Today: “Let us stand in for elected officials.”

Election results by county.

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With California elected officials opting out of defending Proposition 8, the advocates for the successful ballot measure went to court today to argue that they should be allowed to defend it in their place.

Their brief, found here, argues that the voter initiative process depends on a legal defense in court. Lyle Denniston at SCOTUSblog summarized the arguments:

The proponents contended that the very integrity of the voter initiative process in California — a prized part of the state’s lawmaking process — depends upon having someone available to mount a defense of a measure against constitutional attack if state officials don’t do so.  Citing a string of California state court rulings, the brief asserted that their interest in protecting Proposition 8 is already clearly established.

But what injury will they face if the measure is not defended?

The Proposition 8 brief sought to anticipate that question of legal injury by contending that, with state officials on the sidelines, the measure’s backers have become “agents of the people” of the state, acting “to preserve the People’s intiaitive power….”

If no one else can take the place of state officials to defend a ballot measure from constitutional attack, the new filing contended, the state’s elected officials will have succeeded in nullifying the measure even though they have no such veto power under the state constitution or state laws.

In short, by choosing not to defend the law–passed by Californians in the Proposition 8 ballot measure–elected officials are de facto overturning the will of the people with a veto they do not hold.

Meanwhile, same-sex marriage advocates have asked the court to lift the stay imposed on the decision striking down Proposition 8 so that they can begin to marry.


Stay tuned.

(h/t SCOTUSblog)


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