M. S. v. Kate Brown, 902 F.3d 1076

Background

Oregon enacted SB 1080 (2008) to implement REAL ID, requiring proof of legal presence for driver’s licenses; DMV stopped issuing licenses to residents who cannot prove legal presence.
Legislature passed SB 833 (2013) to authorize limited-use "driver cards" for residents unable to prove legal presence; it was referred to voters as Measure 88 and its effect was stayed pending the referendum.
Measure 88 was defeated by voters in November 2014 (66% "No"); SB 833 therefore never took effect and no driver cards were issued.
Plaintiffs (five individuals who cannot prove legal presence and two nonprofits) sued state officials under 42 U.S.C. § 1983, alleging voters’ rejection was motivated by discriminatory animus and that officials’ refusal to issue driver cards violated equal protection and due process.
District court dismissed for lack of Article III standing (failure to show redressability); Ninth Circuit affirmed, holding courts cannot grant the remedies requested because they would effectively require implementing a bill that never became law and such relief is beyond the court’s remedial power.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs have Article III standing (redressability) to challenge the voters’ rejection of Measure 88 and obtain driver cards	A declaratory judgment or injunction invalidating the referendum result or declaring Governor authorized/required to issue driver cards would redress plaintiffs’ injury (access to driving privileges)	A judicial declaration cannot substitute for the majority-vote required under the Oregon Constitution; courts lack power to order state officials to implement a bill that never became law	No standing for redressability; requested relief would not (or courts lack power to) effectuate SB 833 so plaintiffs’ injury is not redressable
Whether a declaration that the voters’ "No" violated the Constitution would make SB 833 effective under Oregon law	A declaration that the referendum result is unconstitutional would render SB 833 effective and permit issuance of driver cards	Oregon Constitution requires majority voter approval for a referred measure to become effective; a judicial declaration would not equate to a valid "Yes" vote	Court cannot treat a declaration as replacing the constitutionally required voter approval; not redressable
Whether the district court may order the Governor to issue driver cards or implement SB 833	Court can declare and order state officials to implement remedies to vindicate constitutional rights	Requiring officials to enact or implement legislation that has not completed the legislative/referendum process intrudes on democratic processes and federalism; equitable relief must be tailored and within court power	Court lacks equitable/remedial authority to require enactment/implementation of a bill that never became law absent narrow circumstances not present here
Whether principles of federalism or separation of powers bar the requested declaratory/injunctive relief	Plaintiffs seek relief to vindicate constitutional rights and prevent discriminatory political outcomes	Such affirmative relief (ordering implementation of a non-enacted statute) would violate federalism and democratic decisionmaking; Ex parte Young/anti-commandeering doctrines and equitable limits constrain courts	Federalism and democratic principles further bar the intrusive relief sought; injunctions/declarations requiring enactment/implementation are beyond the court’s power

Key Cases Cited

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (standing requires concrete injury) (reiterating Article III standing doctrine)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (redressability requires a substantial likelihood that relief will redress injury)
Gill v. Whitford, 138 S. Ct. 1916 (Article III limits and plaintiffs’ personal stake in controversy)
Obergefell v. Hodges, 135 S. Ct. 2584 (fundamental rights cannot be submitted to popular vote)
Bonnichsen v. United States, 367 F.3d 864 (assume legal merit when assessing remedial power for standing analysis)
Republic of Marshall Islands v. United States, 865 F.3d 1187 (courts lack power to give relief when legal mechanism is non-self-executing)
L.A. Cty. Bar Ass'n v. Eu, 979 F.2d 697 (declaratory relief that effectively compels legislative implementation in limited circumstances)
Rizzo v. Goode, 423 U.S. 362 (federalism limits on intrusive affirmative relief against state executive officials)
Printz v. United States, 521 U.S. 898 (anticommandeering principle) (discussed in federalism context)
New York v. United States, 505 U.S. 144 (anticommandeering and federalism limits)
Murphy v. NCAA, 138 S. Ct. 1461 (recent reaffirmation of anticommandeering principles)
Hunter v. Erickson, 393 U.S. 385 (the people’s sovereignty is subject to constitutional limitations)