Elections

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.

Andrew Villeneuve

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