M. S. v. Kate Brown

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

M.S., an individual; V.V., an No. 16-35431

individual; J.H., an individual; E.D.,

an individual; M.B., an individual; D.C. No.

FAMILIAS EN ACCION, a domestic 6:15-cv-02069-

non-profit corporation; LOS NINOS AA

CUENTAN, a domestic non-profit

corporation, on behalf of themselves

and all those similarly situated, OPINION

Plaintiffs-Appellants,

v.

KATE BROWN, in her official

capacity as Governor of the State of

Oregon; TAMMY BANEY, in her

official capacity as Chair of the

Oregon Department of

Transportation Commission; DAVID

LOHMAN, in his official capacity as

member of the Oregon Department

of Transportation Commission;

SUSAN MORGAN, in her official

capacity as member of the Oregon

Department of Transportation

Commission; ALANDO SIMPSON, in

his official capacity as member of

the Oregon Department of

Transportation Commission; SEAN

O’HALLORAN, in his official capacity

2 M.S. V. BROWN

as member of the Oregon

Department of Transportation

Commission; MATTHEW L.

GARRETT, in his official capacity as

Director, Oregon Department of

Transportation; TOM MCCLELLAN, in

his official capacity as Administrator

of Driver and Motor Vehicles

Division, Oregon Department of

Transportation,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Oregon

Ann L. Aiken, District Judge, Presiding

Argued and Submitted May 17, 2018

Portland, Oregon

Filed September 5, 2018

Before: A. Wallace Tashima, M. Margaret McKeown,

and Richard A. Paez, Circuit Judges.

Opinion by Judge Paez

M.S. V. BROWN 3

SUMMARY *

Civil Rights

The panel affirmed the district court’s dismissal, for lack

of subject matter jurisdiction, of an action brought under 42

U.S.C. § 1983 against various Oregon state officials

challenging the rejection by Oregon voters of Senate Bill

833, which would have afforded Oregon residents access to

driver cards without requiring proof of their legal presence

in the United States.

Plaintiffs alleged that voters’ rejection, by referendum

through ballot Measure 88, of SB 833 was motivated by

discriminatory animus, and that the state officials’

consequent refusal to issue driver cards violated their

Fourteenth Amendment rights to equal protection and due

process. Plaintiffs sought (1) a declaration that Measure 88

violates their constitutional rights and was void and

unenforceable; (2) a declaration that the Governor was

authorized and required to issue driver cards pursuant to SB

833; and (3) an injunction, if necessary to enforce such

declarations.

The panel held that because plaintiffs’ requested

remedies were either ineffective or beyond the scope of the

district court’s remedial power, plaintiffs failed to establish

redressability. Accordingly, the district court did not err in

dismissing the complaint for lack of standing. The panel

held that except in certain circumstances not applicable in

this case, structural constitutional limits prevent federal

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

4 M.S. V. BROWN

courts from ordering government officials to enact or

implement a bill that has not completed a lawfully prescribed

legislative process—which, in Oregon, requires majority

voter approval once a bill is properly referred to a

referendum. Plaintiff did not allege that the initial referral

of SB 833 to the voters was improper in any way. Instead,

plaintiffs challenged only the voters’ rejection of Measure

88 and the Governor’s subsequent decision to abide by the

result of the referendum election. The panel concluded that

the legislative process for SB 833 to become law remained

incomplete, and the district court could not issue declaratory

relief authorizing and requiring the Governor to implement

it.

COUNSEL

David Henretty (argued), Monica Goracke, and Stephen S.

Walters, Oregon Law Center, Portland, Oregon, for

Plaintiffs-Appellants.

Jona J. Maukonen (argued) and Susan Yorke, Assistant

Attorneys General; Benjamin Gutman, Solicitor General;

Ellen F. Rosenblum, Attorney General; Office of the

Attorney General, Salem, Oregon; for Defendants-

Appellees.

Michael M. Hethmon, Senior Counsel; Dale L. Wilcox,

Executive Director & General Counsel; Immigration

Reform Law Institute, Washington, D.C.; for Amicus Curiae

Oregonians for Immigration Reform.

M.S. V. BROWN 5

OPINION

PAEZ, Circuit Judge:

The Oregon Constitution grants the people of Oregon the

power of referendum to approve or reject bills passed by the

Oregon Legislature before they become law. In 2014, the

people exercised this power by rejecting Senate Bill 833

(“SB 833”), which would have afforded Oregon residents

access to driving privileges through the issuance of driver

cards without requiring proof of their legal presence in the

United States.

Plaintiffs, five Oregon residents who cannot prove their

legal presence and two non-profit corporations,

subsequently brought this action under 42 U.S.C. § 1983

against various state officials who are responsible for the

issuance of Oregon driver’s licenses. Plaintiffs allege that

the voters’ rejection of SB 833 was motivated by

discriminatory animus, and that the state officials’

consequent refusal to issue driver cards violates their

Fourteenth Amendment rights to equal protection and due

process. Plaintiffs do not, however, challenge the initial

invocation of the referendum power, which suspended the

future operation of SB 833 pending voter approval.

In the context of this unchallenged and ongoing

suspension of the bill’s operation, the district court

dismissed the plaintiffs’ claims under Federal Rule of Civil

Procedure 12(b)(1) for lack of Article III standing. In

particular, the court concluded that plaintiffs failed to

establish the redressability element of standing because the

court could not order the state officials to implement SB 833

and thus issue driver cards. On the circumstances presented

here, we agree with the district court that it cannot provide

redress for plaintiffs’ claimed injury, their inability to obtain

6 M.S. V. BROWN

or renew driving privileges. Accordingly, we affirm the

district court’s dismissal for lack of subject matter

jurisdiction.

I.

A.

The facts of this case can be traced to the enactment of

the REAL ID Act of 2005, Pub. L. No. 109-13 (codified in

scattered sections Title 8 of the U.S. Code). When the REAL

ID Act was enacted, the State of Oregon did not require its

residents to prove their legal presence in the United States to

obtain driver’s licenses. The REAL ID Act, however,

altered this framework by providing that, effective May

2008, states must require individuals to prove their legal

presence in the United States to obtain any documents that

serve as a form of federally approved identification,

including driver’s licenses. 49 U.S.C. § 30301 note. The

REAL ID Act allows states to issue documents conferring

driving privileges regardless of immigration status as long as

such documents are distinguishable from driver’s licenses

and other federally approved identification cards. Id.

To comply with the requirements of the REAL ID Act,

the Oregon Legislature enacted SB 1080 in February 2008.

SB 1080 requires applicants for driver’s licenses to prove

their legal presence in the United States. Or. Rev. Stat.

§ 807.021(1). Pursuant to SB 1080, the Oregon Department

of Motor Vehicles (“DMV”) stopped granting—and

presently refuses to grant—driver’s licenses to Oregon

residents who are unable to prove their legal presence in the

United States.

In April 2013, majorities in both chambers of the Oregon

Legislature voted to enact SB 833, the bill at issue in this

M.S. V. BROWN 7

case, which would restore access to driving privileges for

Oregon residents who cannot prove their legal presence in

the United States. 1 In particular, SB 833 would authorize

state officials to issue limited-use “driver cards” consistent

with the REAL ID Act. As one of SB 833’s sponsors stated

during a floor debate in the Oregon House, the main purpose

of SB 833 was to “improve traffic safety and[] reduce the

number of unlicensed, uninsured drivers on Oregon’s

roads.” The governor signed the bill on May 1, 2013, and it

was set to take effect on January 1, 2014.

One week after the governor signed SB 833, however,

two legislators who had opposed the bill and a third person

filed a petition to refer it as a ballot measure to a state-wide

referendum for approval or rejection by the people pursuant

to article IV, section 1(3)(a) of the Oregon Constitution. 2 In

October 2013, the Oregon Secretary of State determined that

the petition had received the requisite number of signatures

for such referral, and designated SB 833 as Measure 88 for

the November 2014 election. 3

1

The bill passed by a vote of 20 to 7 in the Oregon Senate and by a

vote of 38 to 20 in the Oregon House.

2

In Oregon, the Legislature may refer a bill to the people for a

referendum election, or, as was the case here, the bill may be referred by

a petition receiving signatures amounting to at least four percent of the

total votes cast at the preceding gubernatorial election. Or. Const. art.

IV, § 1(3)(b)–(c). Once a bill is referred to the people, its effect is stayed

pending majority approval at the referendum. See infra pp. 14–16.

Throughout this opinion, except when quoting the parties, we use “SB

833” to refer to the driver card bill prior to its referral to the people, and

“Measure 88” to refer to the driver card ballot measure.

3

See Initiative, Referendum, and Referral Search, Or. Sec’y of

State, Elections Div., http://egov.sos.state.or.us/elec/web_irr_search.rec

8 M.S. V. BROWN

As documented in the Official 2014 General Election

Voter’s Pamphlet, the ensuing Measure 88 campaign was

motivated by efforts to curb “illegal immigration” and

prevent “illegal immigrants” from obtaining or renewing

their driving privileges. Similar statements singling out

“illegal aliens” were made in other public settings, including

a “Protect Oregon Driver Licenses” webpage set up by a

group of driver card opponents in May 2013. In addition,

statements in the Official 2014 General Election Voter’s

Pamphlet denounced the “Mexican” consular ID as a

possible form of identification; the possibility of increased

activity by “Mexican” drug cartels; and the “flood” and

“surge” of “Central American minors to our southern

border.” Opposition statements did not mention immigrants

of any other race or nationality.

On November 14, 2014, 66% of Oregon voters at the

referendum election voted “No” on Measure 88, thus

rejecting SB 833. As a result, SB 833 never became

effective, and the State has not issued driver cards.

B.

In November 2015, individuals M.S., V.V., J.H., E.D.,

and M.B. and non-profit corporations Familias en Acción

and Los Niños Cuentan (collectively, “M.S.”) brought this

putative class action under 42 U.S.C. § 1983 against

Governor Kate Brown and various other state officials in

their official capacities (collectively, “the Governor”). 4

ord_detail?p_reference=20140301.LSCYYY (last accessed July 24,

2018).

4

In addition to Governor Brown, the defendants are Tammy Baney,

Chair of the Oregon Department of Transportation (“ODOT”); David

Lohman, Susan Morgan, Alando Simpson, and Sean O’Halloran,

M.S. V. BROWN 9

M.S., an Oregon resident who is unable to prove her legal

presence in the United States, alleges two violations of the

Equal Protection Clause and one violation of her substantive

due process rights. In particular, she alleges that the voters’

rejection of Measure 88 and the Governor’s consequent

refusal to issue driver cards are unconstitutional because the

referendum result was motivated by animus towards

Mexicans and Central Americans and not rationally related

to a legitimate state interest. 5 M.S. does not, however, allege

that the referral of SB 833 to the voters was itself

unconstitutional or otherwise improper. 6

In May 2016, the district court granted the Governor’s

motion to dismiss the complaint pursuant to Rule 12(b)(1)

on the basis that M.S. failed to establish the redressability

element of Article III standing. The court noted at the outset

that M.S. was not challenging “the referendum process

associated with Measure 88 or any State action taken with

members of the ODOT Commission; Matthew Garrett, Director of

ODOT; and Tom McClellan, Administrator of DMV.

5

The complaint alleges that the “enactment of Measure 88” was

unconstitutional and requests, inter alia, a declaration to invalidate

“Measure 88.” The district court understood these statements in the

complaint to be directed at the voters’ rejection of Measure 88, rather

than Measure 88 itself, because Measure 88—which was simply what

SB 833 became after it qualified for the referendum election—never

became law, and had it become law, it would have afforded M.S. the

very access to driving privileges she now seeks. M.S. v. Brown, 222 F.

Supp. 3d 908, 910 n.3 (D. Or. 2016). As the parties have not challenged

the district court’s construction on appeal, we adopt it here.

6

At oral argument, M.S. confirmed that she was not pursuing such

a challenge. See United States Court of Appeals for the Ninth Circuit,

16-35431 M.S.v. Brown, YouTube (May 17, 2018) at 5:20–5:52.

10 M.S. V. BROWN

respect to the referendum election.” “Rather,” M.S. was

challenging “only the voters’ rejection of Measure 88—and,

by extension, of SB 833—and the State’s alleged refusal to

implement SB 833 as a result of the referendum.” The

district court then reasoned that “even if [it] found the

rejection of Measure 88 to be unconstitutional, SB 833

would not become law” because Measure 88 did not receive

the majority voter approval required under the Oregon

Constitution once SB 833 was properly referred to the

people for a referendum vote. The district court further

reasoned that “[p]rinciples of federalism underlying the

Tenth and Eleventh Amendments forbid [it] from directing

the State to enact or enforce state laws.” Thus, the district

court concluded, M.S. failed to establish the redressability

element of standing. 7 M.S. v. Brown, 222 F. Supp. 3d 908,

914 (D. Or. 2016).

M.S. timely appealed.

II.

Reviewing de novo the district court’s dismissal under

Rule 12(b)(1) for lack of subject matter jurisdiction,

Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 963 (9th

Cir. 2018), we conclude that M.S. lacks Article III standing

to sue. We begin by reviewing relevant principles of

standing. Applying those principles, we then consider

whether M.S.’s claimed injury—her inability to obtain or

7

The district court also concluded that M.S. failed to establish the

causation element of standing. Brown, 222 F. Supp. 3d at 914 n.5. The

court reasoned that the defendants were not “refusing to issue driver

cards because a referendum motivated by discriminatory animus

prevents them from doing so; they cannot issue driver cards because no

valid, existing Oregon law authorizes them to do so.” Id. at 914.

M.S. V. BROWN 11

renew driving privileges—is redressable through a favorable

judicial decision. Because each of M.S.’s requested

remedies is either ineffective or beyond the scope of the

district court’s remedial power, M.S. fails to establish

redressability. Accordingly, the district court did not err in

dismissing the complaint for lack of standing. 8

A.

The doctrine of standing is rooted in the “Cases or

Controversies” clause of Article III of the Constitution.

Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). To

establish standing, a plaintiff must demonstrate a “personal

stake in the outcome of the controversy,” Gill v. Whitford,

138 S. Ct. 1916, 1929 (2018) (quoting Baker v. Carr,

369 U.S. 186, 204 (1962)), thus “ensur[ing] that the Federal

Judiciary respects ‘the proper—and properly limited—role

of the courts in a democratic society,’” id. (quoting Allen v.

Wright, 468 U.S. 737, 750 (1984)). “We enforce that

requirement by insisting that a plaintiff satisfy the familiar

three-part test for Article III standing: that he ‘(1) suffered

an injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.’” Id. (quoting

Spokeo, 136 S. Ct. at 1547).

Most relevant here is the third prong of Article III

standing, redressability. To establish redressability, a

plaintiff must show that it is “likely, as opposed to merely

speculative, that the injury will be redressed by a favorable

decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561

8

In light of our conclusion that there is no redressability, we do not

reach the injury-in-fact or causation elements of standing, and we do not

pass upon the merits of M.S.’s claims.

12 M.S. V. BROWN

(1992) (internal quotation marks omitted). A plaintiff’s

burden to demonstrate redressability is “relatively modest.”

Renee v. Duncan, 686 F.3d 1002, 1013 (9th Cir. 2012)

(quoting Bennett v. Spear, 520 U.S. 154, 171 (1997)). She

“need not demonstrate that there is a ‘guarantee’ that [her]

injuries will be redressed by a favorable decision,” id.

(quoting Graham v. FEMA, 149 F.3d 997, 1003 (9th Cir.

1998); rather, a plaintiff need only “show a ‘substantial

likelihood’ that the relief sought would redress the injury,”

Mayfield v. United States, 599 F.3d 964, 971 (9th Cir. 2010).

If, however, a favorable judicial decision would not require

the defendant to redress the plaintiff’s claimed injury, the

plaintiff cannot demonstrate redressability, see, e.g.,

Mayfield, 599 F.3d at 971, unless she adduces facts to show

that the defendant or a third party are nonetheless likely to

provide redress as a result of the decision, see Lujan,

504 U.S. at 562.

Finally, even where a plaintiff requests relief that would

redress her claimed injury, there is no redressability if a

federal court lacks the power to issue such relief. See

Republic of Marshall Islands v. United States, 865 F.3d

1187, 1199 (9th Cir. 2017) (“Redressability requires an

analysis of whether the court has the power to right or to

prevent the claimed injury.” (emphasis added) (quoting

Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982)

(Kennedy, J.))). When determining the extent of the district

court’s remedial power for purposes of redressability, we

“assume that [the] plaintiff’s claim has legal merit.”

Bonnichsen v. United States, 367 F.3d 864, 873 (9th Cir.

2004). However, not all meritorious legal claims are

redressable in federal court. See, e.g., Republic of Marshall

Islands, 865 F.3d at 1199 (“When a state party violates a

non-self-executing treaty provision, ‘the judicial courts have

nothing to do and can give no redress.’” (quoting Head

M.S. V. BROWN 13

Money Cases, 112 U.S. 580, 598 (1884))). This is so even

where, as here, a plaintiff alleges constitutional violations.

See, e.g., Connor v. Williams, 404 U.S. 549, 550–51 (1972);

Reynolds v. Sims, 377 U.S. 533, 585 (1964). With these

principles in mind, we turn to the remedies at issue in this

case.

B.

We conclude that M.S. has failed to establish

redressability because she seeks only remedies that would

not be substantially likely to redress her claimed injury, see

Mayfield, 599 F.3d at 971, or which are beyond the district

court’s remedial power to issue, see Republic of Marshall

Islands, 865 F.3d at 1199. In particular, M.S. seeks to

redress her claimed injury—her inability to obtain or renew

driving privileges—through the following remedies: (1) a

declaration “that Measure 88 violates [her constitutional

rights] and is void and unenforceable”; (2) a declaration that

the Governor is “authorized and required to issue driver

cards pursuant to SB 833”; and (3) “[a]n injunction, if

necessary,” to enforce such declarations. We address each

requested remedy in turn. See, e.g., Ctr. for Biological

Diversity v. Mattis, 868 F.3d 803, 815 (9th Cir. 2017).

1.

M.S. first requests a “declaration that Measure 88

violates [her] rights under the Equal Protection and Due

Process Clauses . . . , and is void and unenforceable.” We

construe this request to be directed at the voters’ rejection of

Measure 88, rather than Measure 88 itself. See supra note 5.

Therefore, the question before us is whether M.S.’s inability

to obtain or renew driving privileges is redressable through

a declaration that the voters’ rejection of Measure 88

violated her constitutional rights, and is void and

14 M.S. V. BROWN

unenforceable. M.S. asserts that such a declaration would

render SB 833 effective under Oregon law, thus enabling her

to access driving privileges and redressing her claimed

injury. In response, the Governor argues that majority voter

approval is necessary to effectuate SB 833, and therefore

state officials would not be required—indeed, would not

have the statutory authority—to issue driver cards even if the

declaration were issued. We agree with the Governor.

The Oregon Constitution provides that the people retain

the referendum power to approve or reject legislation

enacted by the Oregon Legislature before it goes into effect.

Or. Const. art. IV, § 1(3)(a). Once a bill is referred to the

people for a referendum vote, the resulting “referendum

measure becomes effective 30 days after the day on which it

is . . . approved by a majority of the votes cast thereon.” Or.

Const. art. IV, § 1(4)(d). “When a referendum is invoked,

the act of the legislature then becomes merely a measure to

be voted on by the people, and, if the people vote in the

affirmative, the measure becomes an act; if they vote in the

negative, the measure fails.” Portland Pendleton Motor

Transp. Co. v. Heltzel, 255 P.2d 124, 125 (Or. 1953) (en

banc). “In fact, the measure enacted by the Legislature,

which is referred to the people, is not a law. It will never

become a law unless a majority of voters voting upon the

referred bill vote in favor of the bill.” Davis v. Van Winkle,

278 P. 91, 92 (Or. 1929) (en banc) (emphasis added).

M.S. argues that majority voter approval is not required

to implement SB 833 in light of a 1968 amendment to the

Oregon Constitution, which abrogated the above statements

to the contrary in Heltzel and Davis. We disagree. The

amendment in question revised article IV, section 1 of the

Oregon Constitution by, inter alia, removing the text, “Any

measure referred to the people shall take effect and become

M.S. V. BROWN 15

the law when it is approved by a majority of the votes cast

thereon, and not otherwise,” and inserting the current

language, “[A] . . . referendum measure becomes effective

30 days after the day on which it is . . . approved by a

majority of the votes cast thereon.” 9 A legislative committee

explanation accompanying the amendment provided, in

relevant part, that the amendment “would remove archaic

and redundant language from existing section 1a, Article

IV. . . . These repealed sections are purely ‘clean-up’ of the

wording and in no way do they diminish the power of the

people to initiate or refer measures.” Dist. Ct. Dkt. No. 43,

Ex. B at 2; see also Stranahan v. Fred Meyer, Inc., 11 P.3d

228, 241 (Or. 2000) (“[T]he 1968 amendment did not

purport to alter the nature of the people’s power of initiative

and referendum, which had been in existence since 1902.”).

Thus, the 1968 amendment does not support M.S.’s

argument than an unconstitutional “no” vote on Measure 88

has the same effect as a valid “yes” vote under Oregon law.

To the contrary, the legislative committee explanation for

the amendment cuts against M.S.’s argument by clarifying

that the substantive force of the pre-amendment text—which

plainly states that a referendum measure shall take effect

upon majority voter approval “and not otherwise” (emphasis

added)—did not diminish as a result of the amendment.

In light of the current validity of this majority voter

approval requirement, we conclude that the requested

9

The pre-1968 amendment version of the Oregon Constitution is

recorded in the Oregon Blue Book at 162, Or. Sec’y of State (1965–66);

the text of the amendment and accompanying ballot materials are

contained in the State of Oregon Voters’ Pamphlet at 8–11, Democratic

Party (May 28, 1968); and both of the foregoing sources are attached to

the declaration of Oregon Assistant Attorney General Sarah Weston in

support of the State’s Reply In Support of Motion to Dismiss. See Dist.

Ct. Dkt. No. 43.

16 M.S. V. BROWN

declaration does not establish redressability. After the

Oregon Legislature initially “enacted” SB 833, the Act was

referred to the people for a referendum vote prior to its taking

effect. M.S. does not challenge the legality of that referral.

Once referred to the people, SB 833 was “again reduced to a

bill,” Davis, 278 P. at 92, or “merely a measure,” Heltzel,

255 P.2d at 125. Even if Measure 88 also remained an “Act”

or “statute,” as M.S. contends, its effect was stayed pending

majority voter approval at a referendum election. See Or.

Const. art. IV, § 1(4)(d). That majority voter approval was

not achieved. Nor is it necessarily the case that it would have

been achieved even if we assume, as we must, that M.S.’s

claims are meritorious. M.S. does not (and could not) allege

that, in a referendum election untainted by improper animus,

a majority of voters would have voted in favor of Measure

88. Cf. Am. Civil Liberties Union of Nevada v. Lomax,

471 F.3d 1010, 1015–16 (9th Cir. 2006) (concluding there

was redressability where plaintiffs had challenged initiative

signature rules because, assuming the plaintiffs were to

succeed on the merits of their challenge, “[t]he initiative

would have obtained the requisite percentage of statewide

signatures.” (emphasis added)).

In short, M.S.’s requested declaration would not be

tantamount to majority voter approval, which is required

under the Oregon Constitution for SB 833 to take effect and

thus authorize the issuance of driver cards. Because the

declaration would not require the Governor to issue driver

cards, and M.S. has not alleged that she is otherwise likely

to obtain access to driving privileges as a result of the

M.S. V. BROWN 17

declaration, 10 there is no redressability as to this form of

relief. 11

2.

Next, M.S. seeks a declaration that the Governor is

“authorized and required to issue driver cards pursuant to SB

10

M.S. has not adduced any facts to suggest that the State would

hold a special referendum election if the district court were to issue her

requested declaration. Further, M.S. has not requested that the district

court itself order a special referendum election, and therefore we need

not pass on whether M.S. could establish redressability through such a

remedy.

11

M.S. raises two additional arguments based on Oregon law, both

of which we reject. First, M.S. relies on several Oregon cases for the

proposition that, “whether or not the effective date of a law has been

suspended, it still is a law and can become operative if certain conditions

are met.” That general proposition is correct, but none of M.S.’s cited

cases involves a properly initiated referendum vote that disapproved of

a measure and was subsequently ruled unconstitutional. In such

circumstances, the “bill,” “measure,” or ineffective “law” referred to the

people cannot become operative because the “condition” of majority

voter approval has not been met.

Second, M.S. alludes to the proposition that “a court will not inquire

into the substantive validity of a measure—i.e., into the constitutionality,

legality or effect of the measure’s language—unless and until the

measure is passed.” Boytano v. Fritz, 901 P.2d 835, 837 (Or. 1995) (en

banc) (quoting Foster v. Clark, 790 P.2d 1, 4 (Or. 1990)). According to

M.S., a “necessary corollary” of this principle is that “a measure which

on subsequent review is found to be substantively invalid does not

effectively repeal a statute passed by the Legislature.” The principle

stated in Boytano is inapposite here, however, because M.S. does not

challenge the “substantive validity” of Measure 88. Nor would such a

challenge benefit M.S., given that Measure 88 would have provided her

access to driver cards. Rather, M.S. challenges the validity of the voters’

rejection of Measure 88. See supra note 5.

18 M.S. V. BROWN

833.” Unlike M.S.’s first requested judicial declaration, this

declaration, if issued by the district court, would redress

M.S.’s claimed injury by “requir[ing]” the Governor “to

issue driver cards.” See, e.g., L.A. Cty. Bar Ass’n v. Eu,

979 F.2d 697, 701 (9th Cir. 1992) (“Were this court to issue

the requested declaration, we must assume that it is

substantially likely that the California legislature . . . would

abide by our authoritative determination.”). We hold,

however, that on the facts alleged here, the district court

lacks the power to issue such an intrusive declaration, which

would amount to a requirement that the Governor effectuate

a bill that never became law. First, the requested declaration

is incompatible with democratic principles embedded in the

structure of the Constitution, as well as the principle that

equitable remedies must be tailored to fit the nature of the

constitutional violations alleged. Second, under the unusual

circumstances of this case, the declaration also violates

principles of federalism. Accordingly, M.S. cannot establish

redressability through her second request for relief. See

Republic of Marshall Islands, 865 F.3d at 1199.

a.

We begin by recognizing the circumstances in which an

improperly motivated referendum or initiative outcome may

give rise to a justiciable constitutional claim—i.e., as

relevant here, a claim capable of alleging a redressable

injury. 12 Where a plaintiff challenges the “substantive

12

M.S. alleges that the Governor’s ongoing “refusal to issue driver

cards” is unconstitutional on the ground that she is effectuating the

voters’ improperly motivated “no” votes on Measure 88 at the

referendum, not that such votes were themselves unconstitutional acts.

As explained above, we assume at this stage that the above theory of

official liability is both cognizable and meritorious. See Bonnichsen,

367 F.3d at 873. Nonetheless, because the gravamen of M.S.’s

M.S. V. BROWN 19

result” of an initiative or referendum election on the basis of

improper voter motivation, a federal court has the power to

declare such a result unconstitutional. City of Cuyahoga

Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 199

(2003) (quoting Eastlake v. Forest City Enters., Inc.,

426 U.S. 668, 676 (1976)). Thus, for example, a federal

court may invalidate the repeal of an existing law if the

voters enacted or approved the repeal for discriminatory

reasons. See Crawford v. Bd. of Educ., 458 U.S. 527, 539

n.21 (1982) (citing Reitman v. Mulkey, 387 U.S. 369, 380

(1967)). The exercise of judicial power in this manner—that

is, as a check on the people’s power to enact or repeal laws

(repeals themselves being a type of enacted law)—is

appropriate because “[t]he sovereignty of the people is itself

subject to those constitutional limitations which have been

duly adopted and remain unrepealed.” Hunter v. Erickson,

393 U.S. 385, 392 (1969).

The absence of a law, however, has never been held to

constitute a “substantive result” subject to judicial review,

and for good reason: it is axiomatic that “the Constitution

contemplates that democracy is the appropriate process for

change, so long as that process does not abridge fundamental

rights.” Obergefell v. Hodges, 135 S. Ct. 2584, 2605 (2015).

This is no less true in the context of Article III standing,

where federal courts must respect their “proper—and

properly limited—role . . . in a democratic society.” Gill,

138 S. Ct. at 1929 (quoting Allen, 468 U.S. at 750). The

democratic principle recognized in Obergefell is so

complaint is that the result of the referendum was improperly motivated,

we consider the district court’s power to order relief in relation to that

allegation. See Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.

1, 16 (1971) (explaining that “the nature of the violation determines the

scope of the remedy” (emphasis added)).

20 M.S. V. BROWN

fundamental that it comes as little surprise that courts have

seldom had occasion to apply it directly as a constraint on

federal judicial power. We are not, however, the first court

to consider whether to do so. Reviewing the propriety of a

remedy similar to that requested here, the Sixth Circuit

explained:

Federal Courts do have jurisdiction and

power to pass upon the constitutionality of

Acts of Congress, but we are not aware of any

decision extending this power in Federal

Courts to order Congress to enact legislation.

To do so would constitute encroachment

upon the functions of a legislative body and

would violate the time-honored principle of

separation of powers of the three great

departments of our Government. This

principle is equally applicable to the power

of a Federal Judge to order a state legislative

body to enact legislation. The enactment of

legislation is not a ministerial function

subject to control by mandamus, prohibition

or the injunctive powers of a court.

Smith & Lee Assocs., Inc. v. City of Taylor, 102 F.3d 781,

797 (6th Cir. 1996) (emphasis added) (quoting Joseph

Skillken & Co. v. City of Toledo, 528 F.2d 867, 878 (6th Cir.

1975), vacated and remanded sub nom. Joseph Skilken &

Co. v. City of Toledo, 429 U.S. 1068 (1977), decision

adhered to on remand, 558 F.2d 350 (6th Cir. 1977)).

Although the scope of this pronouncement may be

overbroad—as we explain more fully below, federal courts

have jurisdiction to order a remedy requiring the enactment

of legislation in certain narrow circumstances, such as where

M.S. V. BROWN 21

fundamental rights are at stake—we agree with it in

principle.

In light of the bedrock democratic principle recognized

in these cases, we decline to extend the Supreme Court’s

“substantive result” jurisprudence beyond its current scope.

Rather, we hold that, except in certain circumstances not

applicable here, see infra pp. 22–24 & note 14, structural

constitutional limits prevent federal courts from ordering

government officials to enact or implement a bill that has not

completed a lawfully prescribed legislative process—which,

in Oregon, requires majority voter approval once a bill is

properly referred to a referendum. 13 Or. Const. art. IV,

§ 1(3); see supra pp. 14–16.

The authorities relied upon by M.S. are consistent with

this holding, and indeed assist us in explaining its limits. In

Eu, we held that a plaintiff could seek declaratory relief that

would have required the California Legislature to amend a

state statute to authorize more judgeships and the governor

to fill the new positions. 979 F.2d at 699, 701. To be sure,

California’s legislative process for amending the judgeships

statute was not complete—indeed, it may never have

13

Where the federal legislative process is at issue, the democratic

principle we rely on today does not provide the only constraint on the

federal courts’ subject matter jurisdiction. Separation of powers

concerns are also implicated in that scenario, Smith & Lee, 102 F.3d at

797, as is the Speech and Debate Clause of the Constitution, Newdow v.

U.S. Cong., 328 F.3d 466, 484 (9th Cir. 2003) (concluding that, in light

of the Speech and Debate Clause, “the federal courts lack jurisdiction to

issue orders directing Congress to enact or amend legislation”), rev’d on

other grounds sub nom. Elk Grove Unified Sch. Dist. v. Newdow,

542 U.S. 1 (2004).

22 M.S. V. BROWN

begun—at the time we decided the case. Nonetheless, Eu is

distinguishable from the present case in two ways.

First, unlike M.S., the plaintiff there alleged that the

limited number of judgeships violated the “fundamental

right of access to the courts in civil litigation.” Id. at 705

(emphasis added). Our holding today does not prevent

federal courts from ordering government officials to

vindicate fundamental rights, even where the means for

doing so have not been democratically approved. As the

Supreme Court has recognized, “fundamental rights may not

be submitted to a vote; they depend on the outcome of no

elections.” Obergefell, 135 S. Ct. at 2606 (quoting W. Va.

Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943)). M.S.,

however, does not allege that she has a fundamental right to

access driving privileges. Thus, “democracy is the

appropriate process” for the change she seeks. 14 Id. at 2605.

Second, also unlike M.S., the plaintiff in Eu challenged

the constitutionality of the existing statute prescribing the

number of judgeships rather than solely the absence of a

statute. 979 F.2d at 699. Our holding today also allows for

14

Apart from the realm of fundamental rights, we do not foreclose

the possibility that there may be other narrow circumstances in which

federal courts can order a remedy requiring government officials to

implement or enact legislation. In particular, such a remedy may be

appropriate to vindicate a right that has vested such that it is beyond the

control of the democratic process. Cf. McCullough v. Virginia, 172 U.S.

102, 123 (1898) (“It is not within the power of a legislature to take away

rights which have been once vested by a judgment.”); cf. also, e.g.,

Jorgensen v. Blagojevich, 811 N.E.2d 652, 668–70 (Ill. 2004)

(concluding that the court had the power to order state officials to pay

cost of living adjustments guaranteed under the state constitution to state

judges even after the state legislature specifically voted not to enact an

appropriation for them). Here, however, M.S. does not allege that she

possesses any such right to driving privileges.

M.S. V. BROWN 23

this type of challenge, as federal courts undoubtedly have the

power to strike down existing laws as unconstitutional,

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803),

even where doing so would require the enactment of a new

law, see, e.g., N. Pipeline Constr. Co. v. Marathon Pipe Line

Co., 458 U.S. 50, 87–88 (1982). Here, however, M.S. does

not challenge the constitutionality of the REAL ID Act or

SB 1080, the Oregon law implementing the REAL ID Act,

and thus we are presented only with a challenge to the State’s

failure to effectuate SB 833 after Measure 88 failed to obtain

voter approval.

M.S. also points to SDDS, Inc. v. South Dakota, 47 F.3d

263 (8th Cir. 1995), where the Eighth Circuit held that the

voters’ rejection of a statute at a referendum election, and the

initial referral of the statute to the voters, violated the

Dormant Commerce Clause. Id. at 268, 272. Although the

court did not expressly consider the question of standing, its

exercise of jurisdiction was nonetheless consistent with the

result we reach here. The court had the power to order relief

that would effectuate the statute rejected by the voters

because, in the absence of a valid initial referral to the voters,

the legislative process was complete. Here, in contrast, M.S.

does not challenge the initial referral of SB 833 to the voters.

After that referral, the legislative process for SB 833 was,

and remains today, incomplete pending majority voter

approval. 15

15

M.S. also relies on the City of Cuyahoga Falls Court’s passing

comment that the “respondents do not challenge the referendum itself”

to argue that the absence of a law following a referendum or initiative

election is subject to judicial review. We reject this argument because

that comment simply distinguished a past case in which the plaintiff had

challenged a law resulting from an initiative or referendum. 538 U.S. at

199 (citing City of Eastlake, 426 U.S. at 676).

24 M.S. V. BROWN

In sum, Eu and SDDS are consistent with the basic

democratic principle that courts are not an appropriate

vehicle for effectuating change from a lawful status quo—

here, Oregon’s refusal to issue driving privileges without

proof of legal presence in the United States—and it is that

basic principle which guides our holding today.

Finally, to the extent M.S. seeks to invalidate the initial

referral of SB 833 to the voters—which, as we have just

explained, would effectively render the legislative process

complete—such a remedy would not comport with well-

settled principles of equity. The scope of an equitable

remedy must be “tailor[ed] . . . to fit ‘the nature and extent

of the constitutional violation.’” Dayton Bd. of Educ. v.

Brinkman, 433 U.S. 406, 420 (1977) (quoting Milliken v.

Bradley, 418 U.S. 717, 744 (1974)); see also, e.g., Gill,

138 S. Ct. at 1931 (concluding that plaintiffs did not

establish redressability because, inter alia, their requested

remedy was not “limited to the inadequacy that produced the

injury in fact” (quoting Lewis v. Casey, 518 U.S. 343, 357

(1996)). Again, M.S. does not allege that the initial referral

of SB 833 to the voters was improper in any way. Instead,

she challenges only the voters’ rejection of Measure 88 and

the Governor’s subsequent decision to abide by the result of

the referendum election. Thus, there is no basis for the

district court to invalidate the referral of SB 833 to the voters

and the corresponding suspension of the bill’s effect. The

legislative process for SB 833 to become law remains

incomplete, and the district court cannot issue declaratory

relief authorizing and requiring the Governor to implement

it.

b.

Under the circumstances of this case, principles of

federalism also prevent the district court from ordering relief

M.S. V. BROWN 25

that would require the Governor to implement SB 833.

Principles of federalism “have applicability where injunctive

relief is sought . . . against those in charge of an executive

branch of an agency of state or local governments,” Rizzo v.

Goode, 423 U.S. 362, 380 (1976), as well as where

declaratory relief is sought against such officials, see, e.g.,

Jacobson v. Tahoe Reg’l Planning Agency, 566 F.2d 1353,

1366 (9th Cir. 1977), aff’d in part, rev’d in part on other

grounds sub nom. Lake Country Estates, Inc. v. Tahoe Reg’l

Planning Agency, 440 U.S. 391 (1979). In particular, we

have explained that “[p]rinciples of federalism counsel

against” awarding “affirmative injunctive and declaratory

relief” that would require state officials to repeal an existing

law and enact a new law proposed by plaintiffs. 16 Id. (citing

Rizzo, 423 U.S. at 380).

The interaction between the federalism limits on a

district court’s remedial power, invoked in Rizzo, and a

district court’s power in general to order prospective relief

against state executive officials under the Ex parte Young

fiction, remains an open and contentious area of the law. See

R. Fallon, J. Manning, D. Meltzer, & D. Shapiro, Hart and

Wechsler’s The Federal Courts and the Federal System 1170

(7th ed. 2015). For present purposes, however, we need not

decide whether there are any circumstances in which

principles of federalism provide an independent limit on a

district court’s power to order prospective relief against state

officials. We are confident that where, as here, a plaintiff

16

That principles of federalism “counsel against” such relief,

Jacobson, 566 F.2d at 1366, does not mean that such relief is always

improper, see, e.g., Eu, 979 F.2d at 703 (noting that “principles of

federalism” were “emphatically” implicated by declaratory relief that

would require the California Legislature to amend a statute, but

nonetheless allowing the plaintiff to seek such relief).

26 M.S. V. BROWN

sues state officials seeking intrusive affirmative relief that is

incompatible with democratic principles and where there is

no basis for the district court to invoke its equitable power,

see supra pp. 18–24, such relief would also violate principles

of federalism. See, e.g., Rizzo, 423 U.S. at 378–80. Thus,

on the facts presented here, principles of federalism provide

an additional barrier to the district court’s power to issue

M.S.’s requested declaration. 17

3.

Finally, M.S.’s third request for relief is for an

injunction, “if necessary,” to enforce the declarations she

seeks in her first and second requests. As M.S.’s first two

requests do not establish redressability for the reasons stated

above, M.S.’s request for injunctive relief to enforce those

requests—which, we note, would be even more intrusive

than a declaration, see Eu, 979 F.2d at 703—likewise falls

short.

17

The district court relied in part on the Supreme Court’s

“anticommandeering” decisions in Printz v. United States, 521 U.S. 898

(1997), and New York v. United States, 505 U.S. 144 (1992), which have

recently been joined by Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S.

Ct. 1461 (2018). Brown, 222 F. Supp. 3d at 913. We decline to follow

this reasoning, however, because “this case is not, like Printz and New

York, an attempt by the federal government to require the State to carry

out a federal obligation. Rather, it is an action by private parties . . . to

enforce their own rights under . . . the Constitution.” Armstrong v.

Schwarzenegger, 622 F.3d 1058, 1069 (9th Cir. 2010); see also New

York, 505 U.S. at 179 (distinguishing cases that discuss “the power of

federal courts to order state officials to comply with federal law,”

because “the text of the Constitution plainly confers this authority on the

federal courts”).

M.S. V. BROWN 27

III.

M.S. calls our attention to the daunting prospect of

returning to the political process to seek access to driving

privileges that she and others like her need in order to drive

legally to their jobs, doctors, schools, and churches. That

process, she asserts, “is an illusion for members of

disfavored minority groups as long as their rights are subject

to popular veto referend[a] infected by racial or other class-

based animus.” We do not deny the force of this argument,

which has shaped our Fourteenth Amendment jurisprudence

for the last eighty years. See United States v. Carolene

Prods. Co., 304 U.S. 144, 153 n.4 (1938). Nonetheless, the

risk of improper animus infecting the political process does

not confer upon the federal courts the power to assume the

functions of a legislature or the people in their legislative

capacity.

We recognize that our opinion reflects an asymmetry in

federal judicial power: federal courts have the power to

remedy injuries flowing from a discriminatory law, but not

the power to remedy injuries that exist after the

discriminatory rejection of a law—at least where

fundamental rights or other similarly vested rights are not at

stake. That asymmetry, however, is the product of our

constitutional structure and the democratic system of

government it establishes. Injuries that exist following the

discriminatory rejection of a law are, by definition, injuries

that already existed in our society. Those injuries may be

just as severe as any that flow from a duly enacted law. But

unless the state action that causes an existing injury is itself

unlawful, any redress must lie exclusively in the democratic

process.

For all of the above reasons, M.S. has not established the

redressability element of Article III standing. Accordingly,

28 M.S. V. BROWN

the district court did not err in dismissing the case for lack

of subject matter jurisdiction.

AFFIRMED.