"She wouldn't be governor yet," Jacobs said. "The appeals court will decide before there would be a change of governor and attorney general."

UC Hastings College of the Law professor Rory Little said Whitman's ability to defend the proposition would hinge on several factors - the biggest of which, of course, is whether she becomes governor.

It would also depend on whether the 9th Circuit decides the standing issue before January 6 and how the court decides.

"There are a lot of ifs," Little said. "If the 9th Circuit hasn't decided the matter by December, she could attempt to file a brief to say, 'Now, the state of California enters the case.'"