NPI's Cascadia Advocate

Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Monday, August 23rd, 2021

Idaho Supreme Court voids Republican Legislature’s newest anti-initiative law

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.

Here is the text of Arti­cle III, Sec­tion 1:

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.

Here is the Court’s full deci­sion:

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.”

The Amer­i­can Civ­il Lib­er­ties Union has char­ac­ter­ized those pre­vi­ous require­ments as “one of the most oner­ous bal­lot ini­tia­tive process­es in the country.”

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.

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