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.