In its brief, the Olson-Boies team argues that allowing Yes on 8 standing to represent voters after the state's election officials have decided against appeal would "subvert the express constitutional authority of the governor and attorney general to direct the defense of state laws."

Both Governor Jerry Brown and Attorney General Kamala Harris have said they would not defend Prop 8. Brown was previously attorney general and refused to defend the law while he was in that office. Former Governor Arnold Schwarzenegger also declined to defend the law.

Allowing Yes on 8 to pursue the appeal of a decision that the state's elected legal officers have chosen not to appeal, said the brief, "would upend the settled separation of powers and eviscerate the constitutional authority of the governor and attorney general. ..."