My former Horvitz and Levy colleague Jon Eisenberg has filed this amicus brief in the 9th Circuit asking for certification of a question about the constitutionality of the initiative process to be certified to the California Supreme Court. In an article about the brief in the National Law Journal, Dan Lowenstein says: “The prospects of the Supreme Court ruling that the initiative is a revision after it has been in effect for 99 years are somewhat between nil and zero…This is really nonsense.”
UPDATE and CORRECTION: The blogging is fast and furious just before the election, and in writing the original headline for the piece, I incorrectly said that the Eisenberg brief raised a guarantee clause challenge to Prop. 8. That was based upon too quick a reading of the linked NLJ piece. The argument instead, from the brief, is the following:

In Strauss v. Horton, 46 Cal. 4th 364 (2009), the California Supreme Court determined that Proposition 8 fell on the “amendment” side of the revision/amendment divide. Strauss left unanswered, however, the more fundamental question whether the initiative process itself could properly have been enacted as an amendment,” rather than a “revision” to the State Constitution. In Strauss, the California Supreme Court carefully reviewed the revision/amendment dichotomy and all the Court’s prior decisions analyzing the distinction between these two methods of altering the California Constitution. Id. at 412-440. After analyzing the prior cases, the Court explained that a change to the Constitution must be enacted by the process for “revision,” and not mere “amendment,” if it amounts to “‘a change in the basic plan of the California government,” that is, “‘a change in [the] fundamental [governmental] structure or the foundational powers of its branches.” Id. at 438 (quoting Legislature v. Eu, 54 Ca1. 3d 492, 508-509 (1991)); see also Strauss, 46 Cal. 4th at 427, 430).

Sorry for the error.