A scheme recently adopted by Idaho’s Republican-controlled Legislature that aimed to make it extremely difficult for progressive groups to qualify any measures to the statewide ballot in the future is unconstitutional and thus not enforceable, the Idaho Supreme Court ruled unanimously today.
Senate Bill 1110 does not comport with the Gem State’s plan of government because it infringes upon the fundamental rights of direct democracy guaranteed to Idahoans by Article III, Section I of the state’s constitution.
(That’s the provision that spells out the people’s initiative and referendum powers in addition to stipulating that Idaho shall have a House and a Senate.)
Republican state legislators attempted, with SB 1110, to make getting on the ballot more difficult by requiring sponsors of measures to obtain signatures from six percent of eligible voters from all thirty-five legislative districts instead of six percent of voter signatures from eighteen legislative districts.
Reclaim Idaho, which challenged SB 1110’s constitutionality, argued that this new requirement was beyond onerous and indefensible. The Court agreed, rejecting arguments from the Idaho Secretary of State (SOS) and Republican legislators that it was a lawful exercise of the Legislature’s lawmaking powers.
“The SOS and the Legislature ask us to read the initiative and referendum provisions of the Idaho Constitution as merely defining a power that is subject to total control by the legislature. We do not agree,” the justices wrote.
“A close reading of Article III, Section 1 convinces us that it establishes the people’s fundamental right to legislate directly, as opposed to a power that is subservient to the will of the legislature. The conditions and manner provisions do not grant the legislature carte blanche in limiting that right,” the justices added.
Section 1. LEGISLATIVE POWER — ENACTING CLAUSE — REFERENDUM — INITIATIVE. The legislative power of the state shall be vested in a senate and house of representatives. The enacting clause of every bill shall be as follows: “Be it enacted by the Legislature of the State of Idaho.”
The people reserve to themselves the power to approve or reject at the polls any act or measure passed by the legislature. This power is known as the referendum, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, demand a referendum vote on any act or measure passed by the legislature and cause the same to be submitted to a vote of the people for their approval or rejection.
The people reserve to themselves the power to propose laws, and enact the same at the polls independent of the legislature. This power is known as the initiative, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, initiate any desired legislation and cause the same to be submitted to the vote of the people at a general election for their approval or rejection.
If you’re familiar with the Washington State Constitution, you’ll note that the language is similar. Washington and Oregon, like Idaho, also have the initiative and referendum, which is constitutionally guaranteed.Idaho Supreme Court opinion in Reclaim Idaho/Gilmore v. Denney
It is no secret that Idaho Republican legislators don’t like the initiative and referendum. While right wing activists in neighboring Washington and Oregon have used the initiative and referendum to challenge progressive laws they don’t like, in Idaho, the right wing has total control over state government and thus Republican legislators see no need for direct democracy. It is a threat to their rule as opposed to a tool for getting right wing ideas in front of voters.
For Idaho progressives, the initiative is not merely one of two possible avenues for getting progressive ideas enacted into law, as is the case in the Pacific Northwest’s other two states, but the sole means of securing progressive change at the statewide level. If SB 1110 were to have stood, it could have made it impossible for groups like Reclaim Idaho to ever qualify another measure to the ballot. (They’re actually working on one right now… the Quality Education Act.)
But now that SB 1110 has been struck down, the previous requirements for qualifying measures to the ballot will go back into force by order of the Court.
“Regarding the merits of Reclaim and the Committee’s petition,” the justices wrote in their concluding remarks, referencing the plaintiffs, “we grant the petition in part by declaring that section 34–1805(2) violates Article III, Section 1 of the Idaho Constitution because the initiative and referendum powers are fundamental rights, reserved to the people of Idaho, to which strict scrutiny applies.”
“We conclude that the SOS and the Legislature have failed to present a compelling state interest for limiting that right. Additionally, even if there were a compelling state interest, the Legislature’s solution is not a narrowly tailored one.”
“Therefore, we also grant the petition for a writ of prohibition barring SB 1110 from taking effect. However, we deny without prejudice the request to further strike the geographic distribution requirement in the previous statute.”
“Our deepest thanks go out to all who donated, testified, wrote letters, and showed up again and again for our campaign to protect the citizen initiative process,” said Reclaim Idaho’s co-founder Luke Mayville in an email.
“Thank you to former Idaho Chief Justice Jim Jones and all the members of the Committee to Protect and Preserve the Idaho Constitution, an organization that served alongside us as a plaintiff in this case. Thank you as well to all who provided declarations for our case: Ben Ysursa, Joe Champion, Gary Moncrief, Karen Lansing, Jessica Mahuron, Linda Larson, David Daley, and Robin Nettinga.”
“And a very special thank you to our attorneys Deborah Ferguson and Craig Durham, who are peerless in their vigilance on behalf of the rights of Idahoans and who poured long hours and painstaking care into our lawsuit.”
“We are forever grateful.”
So it will still be tough to get on the ballot… but not next to impossible, as Idaho progressives proved a few years ago when a bipartisan measure to expand Medicaid successfully qualified for the ballot and was approved by Idahoans.
That measure had been introduced and reintroduced in the Legislature for many years but was blocked by the ardently right wing Republican majorities that have long dominated both chambers. It was finally liberated from imprisonment in the statehouse by getting transformed into an initiative… an initiative that even many Republican voters who keep those Republican legislators in power voted for.
Had anything like SB 1110 been proposed in Washington last session — or any recent session — Tim Eyman would have rallied his Republican PCO followers to fiercely lobby against it. To our knowledge, Eyman has not spoken out against SB 1110 in any public forum, even though it is clearly an attempt to make it harder for anybody to get anything on the Idaho statewide ballot.
Given that Eyman now claims to be working on voter suppression schemes in “seven key swing states,” he can’t claim that matters beyond Washington’s borders are not something that he cares about, or comments upon.
Still, we can’t imagine he will celebrate or even publicly take notice of today’s ruling, because he would be violating the so-called Eleventh Commandment (thou shalt not criticize fellow Republicans). Eyman has violated this “commandment” on occasion, whenever it has suited him, but most of the time, he reserves his ire for progressives and Democrats, who he frequently refers to as “crazies” and has claimed are deadset on sabotaging the initiative and referendum in Washington.
Actually, our objective with respect to initiative reform in Washington is to stop bad actors like Eyman from abusing and manipulating people through the initiative process, whether through falsehood-laden ballot titles or provisions that blatantly run afoul of the state’s longstanding prohibition against logrolling.
With a few thoughtfully designed changes to our laws, we can stop abuses by the likes of Eyman and protect the integrity of our direct democracy powers, while leaving the threshold for qualifying measures to the ballot unaffected.
This is something Oregon has already done, and it helped put an end to several fraudulent, deceptive practices there, while leaving the runway clear for legitimate campaigns wanting to put ideas in front of voters with a ballot measure.
SB 1110, on the other hand, is a real example of an anti-initiative, anti-voter law that egregiously sought to make it harder to qualify anything to the statewide ballot. It was painfully obvious that Idaho Republican legislators didn’t want groups like Reclaim Idaho to be able to bypass their ironclad grip on the statehouse and bring an idea before voters, even though the Idaho Constitution guarantees all Idahoans that right. Thankfully, the state’s system of checks and balances worked, and the Supreme Court has ridden to the rescue of the imperiled Article III, Section 1 powers that the Legislature tried to torpedo.