In the opening round of questioning yesterday (regarding standing), Justice Ginsberg asked whether SCOTUS has ever granted standing to proponents of ballot initiatives.
At issue here is whether the litigants have sufficient concrete and particularized injury; stake in the outcome beyond merely ideological interest; whether they adequately represent an aggrieved party; and other prudential concerns related to standing.
So, what about that? I recognize that Lujan, Richardson, and other precedent limit standing in this way. But, here we're speaking of the general interest of the voting populace that their will, experssed through ballot measures, come into law. No single proponent of a ballot measure has a "proprietary interest" (Ginsberg words) in the enforcement of their ballot measures... but in that, the prudential limits on standing produce a counter-majoritarian and even anti-democratic ring to it.
I personally think Prop 8 is archaic and objectionable, and I hope my state soon recognizes a full right of marriage to any couple who wishes for it. But, I'm more concerned about the right of ballot access as a means of petitioning and redressing government.
Without federal standing to review/ enforce state ballot questions - and since the acts themselves would not have the imprimatur of Congress authorizing a suit - the aggrieved plaintiff would be caught in the very state courts which may be subject to the political factions which are his ideological rivals.
I don't see an easy way out of this standing issue, unless the Court recognizes limited standing with ballot questions arising from states. This would open a "public interest" avenue for the federal courts which does not now exist, even for those organizations to which I'm sympathetic.
libertyindeath3 karma
In the opening round of questioning yesterday (regarding standing), Justice Ginsberg asked whether SCOTUS has ever granted standing to proponents of ballot initiatives.
At issue here is whether the litigants have sufficient concrete and particularized injury; stake in the outcome beyond merely ideological interest; whether they adequately represent an aggrieved party; and other prudential concerns related to standing.
So, what about that? I recognize that Lujan, Richardson, and other precedent limit standing in this way. But, here we're speaking of the general interest of the voting populace that their will, experssed through ballot measures, come into law. No single proponent of a ballot measure has a "proprietary interest" (Ginsberg words) in the enforcement of their ballot measures... but in that, the prudential limits on standing produce a counter-majoritarian and even anti-democratic ring to it.
I personally think Prop 8 is archaic and objectionable, and I hope my state soon recognizes a full right of marriage to any couple who wishes for it. But, I'm more concerned about the right of ballot access as a means of petitioning and redressing government.
Without federal standing to review/ enforce state ballot questions - and since the acts themselves would not have the imprimatur of Congress authorizing a suit - the aggrieved plaintiff would be caught in the very state courts which may be subject to the political factions which are his ideological rivals.
I don't see an easy way out of this standing issue, unless the Court recognizes limited standing with ballot questions arising from states. This would open a "public interest" avenue for the federal courts which does not now exist, even for those organizations to which I'm sympathetic.
Thoughts?
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