What the Supreme Court’s Prop. 8 Ruling Means for Voter-Approved Laws

Source: Dylan Scott, Governing, June 26, 2013

The U.S. Supreme Court’s decision to dismiss the case over California’s gay marriage ban on standing grounds could have serious implications for other states that allow voters to pass laws through the initiative process…. During oral arguments, as Governing reported, some of the justices questioned if the Court would set a dangerous precedent if it dismissed the case on standing. Their reasoning was that it would allow state officials to effectively neuter the voter referendum process by refusing to defend in court voter-passed laws that they don’t like. Justice Anthony Kennedy raised those concerns again Wednesday in his dissent, noting that 26 states allow voters to pass laws through ballot initiatives and argued that the Roberts decision could therefore impact them….

…There could be a legislative remedy to the somewhat unsettling idea that state officials could effectively veto voter initiatives, says Ernest Young, a law professor at Duke University. States could alter their initiative laws to designate an initiative’s sponsors or even an independent ombudsman as the party who would defend an initiative’s constitutionality in court….