Statewide elective offices other than Governor can often seem inconsequential. But for those of us who follow elections big and small, it can be important to find examples of races down the ballot that have a noticeable impact in the future. California's election for Attorney General in 2010 is one excellent example to add to the roster. Its impact extended all the way to a major Supreme Court case decided this year.
As everyone now knows, the Supreme Court dismissed the appeal in Hollingsworth v. Perry, the Prop. 8 case, on "standing" grounds. That means that the court found that Dennis Hollingsworth and his intervenor-defendant allies were not able to represent California for the purpose of defending the state's laws. But the "Protect Marriage" crew had to intervene in the first place because no state official was willing to defend Prop. 8 in court.
However, Steve Cooley promised to do so on appeal if elected Attorney General in 2010:
Los Angeles County District Attorney Steve Cooley, who's the Republican candidate for California Attorney General, would defend Proposition 8 in court if given the opportunity, says his campaign spokesman Kevin Spillane.But as the same article explains, Kamala Harris, Cooley's opponent (now California's Attorney General) had a different view:
'The role of the attorney general is to defend the will of the people,' says Spillane. 'He would defend (Prop. 8) and appeal' U.S. District Court Judge Vaughn Walker's ruling that found the anti-gay marriage ballot measure to be unconstitutional.
In a recent press statement, Harris, the current San Francisco district attorney, said that she stands in "sharp contrast 'to Cooley,' who has repeatedly stated that he would vigorously defend Prop. 8.' Harris continued, 'If elected attorney general, Mr. Cooley intends to use the full weight and resources of the California Attorney General's Office to stand as a roadblock to civil rights. California's next attorney general will play a pivotal role as this case continues through the court system.'
If Cooley had won the 2010 election, the Supreme Court would not have been able to decide the Prop. 8 case on the basis of standing. That is because the Attorney General of a state clearly has standing in Federal court to defend his state's laws, as the Supreme Court's opinion in Perry explained:
No one doubts that a State has a cognizable interest “in the continued enforceability” of its laws that is harmed by a judicial decision declaring a state law unconstitutional . . . . To vindicate that interest or any other, a State must be able to designate agents to represent it in federal court. . . . That agent is typically the State’s attorney general.It was by no coincidence that the original complaint filed in Federal District Court in San Francisco (what law mavens call the "Northern District of California"), named "EDMUND G. BROWN, JR., in his official capacity as Attorney General of California" as a defendant. As a consequence, the 9th Circuit would probably not have had any reason to certify a state law standing question to the California Supreme Court. That would have saved time. In fact, it is possible that the case would have reached the Supreme Court sooner.
It may be difficult to remember now, but California came close to electing Steve Cooley as its Attorney General. He was not only favored in most public polling, but he also had an early lead on election night. He even prematurely declared victory. Fortunately for the state--and the country--Kamala Harris ultimately won the election by 13,796 votes out of more than 8 million cast for the two major candidates.
One major consequence of Harris's win is that she was able to preserve Jerry Brown's decision not to defend Prop. 8. It is true, of course, that the Supreme Court may well have overturned Prop. 8 on the mertis, as the district court and (for narrower reasons) the Ninth Circuit did. I personally expected that it would if it made a different decision on standing. But from the Windsor case, decided on the same day, we can now confirm for ourselves that there are only 5 votes in favor of marriage equality rooted in the Constitution.
Above all else, this case illustrates that elections have consequences. It almost seems trite to say, but narrow decisions by the voters can change the course of history.
 Probably, anyway. There might be an argument that it was too late under the Federal Rules of Civil (or Appellate) Procedure.