Kenneth P Miller

Background

Miller has a B.A. from Pomona College where he majored in Government (1985), a J.D. from Harvard Law School (1988) and a Ph.D in political science from the University of California at Berkeley (2002).

Prior to his academic career, Miller was an attorney with the law firm Morrison & Foerster and in 1991 co-founded the firm’s Sacramento office.

Miller is the author or coauthor of several books and articles regarding California politics and direct democracy. His Direct Democracy and the Courts (2009), which examines the initiative process and judicial review within the checks and balances system, has been called “the standard work on the relationship between the judiciary and direct democracy.” He also coauthored The New Political Geography of California (2008), which examines the demographic features of California's changing political landscape. His articles include "The Democratic Coalition’s Religious Divide: Why California Voters Supported Obama but not Same-sex Marriage," Revue française d’études américaines (French Review of American Studies) (2009); “The Davis Recall and the Courts” American Politics Research, Vol. 33, No. 2, (2005); and “Constraining Populism: The Real Agenda of Initiative Reform,” Santa Clara Law Review, Vol. 41, No. 4, 1037-1084 (2001). He also co-wrote with Bruce E. Cain “The Populist Legacy: Initiatives and the Undermining of Representative Government” in Larry J. Sabato, Howard R. Ernst, and Bruce A. Larson, eds. Dangerous Democracy? The Battle Over Ballot Initiatives in America (2001) and “Voting Rights Mismatch: The Challenge of Applying the Voting Rights Act to ‘Other Minorities’” in Mark E. Rush, ed., Voting Rights and Redistricting in the United States (1998).

As part of his work for the Rose Institute, he maintains the Miller-Rose Institute Initiative Database, a comprehensive collection of all voter-approved ballot initiatives throughout the United States. The database also summarizes and analyzes legal challenges to these ballot measures as well as the courts’ treatment of such cases.

Perry v. Schwarzenegger testimony

In January 2010, Miller appeared in federal district court as an expert witness in Perry v. Schwarzenegger, the case challenging California Proposition 8 (2008). He was called as a witness by the defendant-interveners, proponents of Proposition 8. Proposition 8 was a state constitutional amendment that overturned the California Supreme Court’s 2008 decision in In re Marriage Cases. In that decision, the California Supreme Court had asserted that there was a right to marriage that extended to same-sex couples. Proposition 8, approved by a majority of California’s electorate, reinstated the traditional understanding of marriage as a union between a man and a woman.

Miller was presented to the court as an expert in California and American politics and was called on to testify regarding the issue of the political power of gays and lesbians in California and the United States. The issue was particularly relevant to determining whether courts should apply heightened scrutiny when reviewing laws affecting this group, including laws that restrict marriage to a union between a man and a woman. On the stand, Professor Miller argued that the plaintiffs’ assertion that gays and lesbians are politically powerless, thus deserving special protective intervention by the courts, ignored evidence that in several respects this group wields significant political power. Miller argued that "political power is multi-faceted. It has a lot of different factors that can contribute to power, and I would just list a few of them. One would be, certainly, money; access to lawmakers; the size and cohesion of a group; the ability to attract allies and form coalitions; and the ability to persuade." Miller went on to evaluate the LGBT community's power in California by these metrics. Miller testified that “gays and lesbians, and the broader lesbian, gay, bisexual, and transgender (LGBT) rights movement have achieved significant political power in California and elsewhere in the United States, and can effectively pursue their goals through democratic institutions.”

Miller provided documentation of a broad political coalition supporting gay rights, which includes the Democratic Party, organized labor, corporations, media, professional associations, religious organizations, and elected officials. In particular, he highlighted the Democratic Party’s support for the LGBT community in California. Professor Miller described for the court recent successes for the gay rights community through the legislative process within California and throughout the United States. These include the support of California’s governor at the time, Arnold Schwarzenegger, as well as many other high-ranking public officials within and outside of the state. Miller also discussed the financial support received by the campaign against Proposition 8, remarking "It was striking to me the amount of money that was raised on both sides of the election of Proposition 8. $43 million were raised and spent by the opponents of Proposition 8, which exceeded very large contributions and expenditures... by the Yes On 8.” When asked how many initiative related campaigns in the US had raised such a large amount of money, Miller answered that "it's exceptionally rare. There is no other social issue that's ever involved this kind of money."

On cross-examination, Miller acknowledged that Proposition 8 discriminates against gays and lesbians in the sense that it treats different people differently. He also acknowledged that while it is difficult to know the electorate’s intent when voting on initiatives, it is likely that “at least some” supporters of Proposition 8 were motivated by animus against gays and lesbians. On direct Miller had argued, however, that the success of Proposition 8 and the LGBT's reliance on broad coalition support were not signs of political powerlessness. Instead, he argued that this reality conformed with constitutional design: "...in the American political system, which is pluralistic and you have lots of interest groups, again, this is sort of a Madisonian view of American politics with multiplicity of groups or factions in the society. Basically everybody has to form coalitions and make alliances in order to achieve their political goals. If you are a minority group, particularly a smaller minority group, then coalition building and forming alliances becomes even more important to your attaining your goal's objectives.".

At trial, plaintiff’s counsel objected to Professor Miller’s qualifications an expert in the areas of discrimination against gays and lesbians and gay and lesbian political power, contending in particular that Miller lacks sufficient expertise to offer an opinion on the relative political power of gays and lesbians. District Court Judge Vaughn Walker permitted Miller to testify. In his decision [1] filed August 4, 2010, however, Walker wrote that, “while Miller has significant experience with politics generally, he is not sufficiently familiar with gay and lesbian politics to offer opinions on gay and lesbian political power.” In his opinion, Judge Walker further ruled that “Miller’s opinions on gay and lesbian political power are entitled to little weight and only to the extent that they are amply supported by reliable evidence.” Walker’s opinion went on to declare Proposition 8 unconstitutional, a decision appealed to the 9th Circuit Court of Appeals. A three-judge panel upheld the decision 2-1 in Perry v. Brown, but on a narrower constitutional reasoning that did not address expert testimony. In December 2012, the U.S. Supreme Court granted certiorari to review the lower court decisions in the case, now titled Hollingsworth v. Perry.