Should Imperial County Have Standing to Defend Proposition 8 in a New Trial?
As for whether Imperial County should be allowed to defend Proposition 8, I express no firm conclusion, but I have my doubts about the County’s position. True, County officials — unlike the Proposition 8 sponsors — include elected representatives. But these county clerks are elected not by a statewide electorate. Instead, they are chosen by a local (and perhaps unrepresentative) constituency. For this reason, when issues (like marriage) arise that involve statewide legal systems and statewide policy concerns, letting counties speak on behalf of the state — especially when executive officials who are elected statewide (like the Governor and Attorney General) disagree with the position that those counties are taking — would seem to be problematic. Indeed, that appeared to be one of the big reasons why the California Supreme Court held, in the early stages of California’s same-sex marriage saga, that San Francisco county (led by Mayor Gavin Newsom) could not go its own way in 2004 in
