FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

M.S., an individual; V.V., an 

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

an individual; M.B., an individual; 

FAMILIAS EN ACCION, a domestic 

non-profit corporation; LOS NINOS 

CUENTAN, a domestic non-profit 

corporation, on behalf of themselves 

and all those similarly situated,

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 

No. 16-35431

D.C. No.

6:15-cv-02069-

AA

OPINION
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 DefendantsAppellees.

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 wellsettled 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 classbased 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.