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Idaho Supreme Court overturns restrictive initiative law

The decision restores Idaho's initiative laws to what they were at the start of this year.

BOISE, Idaho — A unanimous Idaho Supreme Court has overturned a restrictive new initiative law passed by the Idaho Legislature this year, ruling it unconstitutional.

The decision restores Idaho's initiative laws to what they were at the start of this year. The justices also awarded attorney fees and costs to Reclaim Idaho and the Committee to Protect and Preserve the Idaho Constitution.

"Thousands of Idahoans will be breathing a sigh of relief," said Luke Mayville, the co-founder of Reclaim Idaho, the group that successfully sponsored the 2018 Medicaid expansion initiative and brought the lawsuit challenging the new law. "Those of us directly involved in the case are ecstatic. It's an historic day. A fundamental right of the people of Idaho has been restored."

The groups, in their lawsuit, had asked the court to remove all geographic requirements for initiative qualification, but hailed the result, which returns the requirement to signatures from 6% of registered voters in 18 of Idaho's 35 legislative districts. “We know that that’s a very, very steep hill to climb, but it’s possible,” said attorney Deborah Ferguson, who represented Reclaim Idaho and the Committee to Protect and Preserve the Idaho Constitution. She noted that was the law in effect when the Medicaid expansion initiative passed, and called the court ruling "a very fine result."

SB 1110,  which the Legislature passed this year and Gov. Brad Little signed into law April 17, increased the number of signatures required to qualify a voter initiative or referendum measure for the Idaho ballot from those of 6% of registered voters in each of 18 of Idaho's 35 legislative districts, to 6% in each and every one of the 35 districts. 

Little, in his signing letter on SB 1110, wrote, "Whether SB 1110 amounts to an impermissible restriction in violation of our Constitution is highly fact dependent, and ultimately a question for the Idaho Judiciary to decide."

The justices also overturned a 2020 law making any initiative or referendum not take effect until July 1 of the year following the November election, giving the Legislature a chance to repeal it before it takes effect.

"It infringes on the people's reserved power to enact legislation independently of the Legislature," Justice Greg Moeller wrote for the majority.

Justice Robyn Brody dissented on a point regarding the standard of review, but concurred in the result. Justice John Stegner concurred, but disagreed with the majority's decision to dismiss a second lawsuit, from former longtime Deputy Idaho Attorney General Michael Gilmore, for lack of standing.

"The initiative and referendum powers are fundamental rights, reserved to the people of Idaho, to which strict scrutiny applies," the ruling stated.

Two lawsuits were filed with the court challenging the law as unconstitutional, one from Reclaim Idaho and the Committee to Protect and Preserve the Idaho Constitution; and the second from Gilmore. Both lawsuits charged that the new law effectively nullified the people's right to initiative and referendum, which the Idaho Constitution has guaranteed the people of Idaho since 1912.

Reclaim Idaho currently is circulating a new initiative to increase education funding in Idaho.

The committee is a group of lawyers, led by two former Idaho attorneys general, that formed in March to protect the Idaho Constitution "from repeated attacks by the Legislature," and announced plans to "blow the whistle on legislation that threatens the integrity of the Idaho Constitution and to use every legal avenue to oppose it," including challenging it in court.

Former Idaho Attorney General Jim Jones, a founder of the committee, said, "This is a ruling that is going to resonate across the country."

Jones said the ruling's clear finding that the rights to initiative and referendum are a "fundamental right" is extremely significant. 

"It's not some window dressing, like the Secretary of State and the Legislature tried to portray it as," said Jones, who is also a former chief justice of the Idaho Supreme Court. "It is a fundamental right, and if you're going to try to restrict it, you've got to have a darn good reason, a public policy reason. And neither the Secretary of State nor the Legislature gave the court one."

"They claimed they were trying to stand up for the rights of the minority, but the court obliterated that argument," Jones said.

Both Reclaim Idaho and the committee were represented by the law firm of Ferguson Durham. Gilmore acted as his own attorney. 

The two groups’ lawsuit detailed a long history of legislative attempts to curtail the constitutional rights to initiative and referendum, starting when the right first was added to the Idaho Constitution by voters in the early part of the 20th century. 

In 2019, Little vetoed even more far-reaching initiative restrictions passed by the Legislature that year, which sought to increase signature requirements to 10% of registered voters in 32 of Idaho’s 35 legislative districts, while cutting the signature-gathering period by two-thirds, from 18 months to six. He cited concerns about constitutionality.

Democratic lawmakers like Boise Senator Grant Burgoyne are speaking out in support of the decision saying it is a major win for the rights of the people.

“The whole purpose of the initiative and referendum is really to be a check on legislative power and that’s completely appropriate. All branches of government have checks on their powers. This is a sovereign right of the people," Burgoyne said.

The law in question originally began as Senate Bill 1110, supporters said it better integrated rural Idaho into the process. Bill sponsor Rep. Jim Addis said about why he believed in the concept:

“I think the more people you have involved in helping to create law, whether it is in the initiative process or in the traditional process, I think that is a good thing,” he said. “It is not a Republican, Democrat, conservative, liberal issue. I just think it is really good policy, and if we start with good policy we get better results, and that’s what I’m for," Addis said.

Following the decision from the Idaho Supreme Court, House Speaker Scott Bedke shared this statement saying;

“Members of the Idaho House Republican Caucus are disappointed at the Idaho Supreme Court’s decision limiting the voice of rural voters,”. “These changes to the voter referendum/initiative process would’ve served to increase voter involvement and inclusivity, especially in the corners of the state too often forgotten by some. We believe that all the 35 legislative districts, every part of Idaho, should be included in this important process, unfortunately, the Supreme Court apparently disagrees.”

Senator Janie Ward-Engelking  (D - Boise) disagrees that Senate Bill 1110 benefitted rural Idaho, she said if anything is silenced, all Idahoans while not promoting rural engagement.

“In fact, it probably did more to discourage rural Idahoans from getting involved because they knew that one single district could veto, in essence, all the work of the rest of the state," Ward-Engelking said.

Senator Burgoyne said he wouldn’t be surprised if the voter initiative process is taken up again by Idaho lawmakers. He pointed to the Supreme Court’s opinion which highlighted a long battle on voter initiatives between the legislature and the people dating back to 1912.

“This history goes back over 100 years of trying to destroy this right and the court has pushed back and pushed back hard and I have no doubt that the courts will continue to stand up for the rights of the people, and to stand up for constitutional government, and to put the legislature back in its place," Burgoyne said.

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