Jim Jones

The people of Idaho decided in 1911 to put a process in place to enact or repeal legislation at the ballot box when they disagreed with the Idaho Legislature. It was part of a reform effort that was sweeping the country because of recalcitrant legislators. Idaho voters have used the initiative from time to time when the Legislature has refused to honor the popular will.

After the people tired of the Legislature’s refusal to expand Idaho’s Medicaid program, the voters acted to get the job done through an initiative. That initiative passed last year by a substantial majority.

Some legislators are offended when the people take the law into their own hands. Some think the voters are not smart enough to be able to pass legislation on their own -- to second guess the elected representatives. There are often legislative efforts to repeal or redo when the people have spoken through passage of initiatives or referenda. We have seen that with the Medicaid initiative.

Now, legislation has been proposed that would kneecap the initiative and referendum process. With passage of that legislation, there would be no more people-initiated laws like Medicaid expansion and no more repeals by referendum like the Luna laws in 2012. The legislation, Senate Bill 1159, would effectively put a stop to this nonsense of the people being involved in the legislative process.

The bill would require a herculean signature-gathering effort to put an initiative or referendum measure on the general election ballot. Instead of having to gather signatures from more than 6% of voters in each of 18 of Idaho’s 35 legislative districts, proponents would have to get the signatures of at least 10% of voters in each of 32 legislative districts. The statewide total of voter signatures would be increased from 6% to 10%. And, the signatures would have to be gathered in 180 days, rather than the current 18 months.

It is not as if the people of Idaho misuse the initiative/referendum process. Even though the process was put into the Constitution in 1911, it was not even used until 1938 when the voters established the Idaho Fish and Game Commission. It has been sparingly used since then.

The Legislature has tried to make it difficult to get a measure on the ballot in the past. In 1997, the Legislature put in a requirement that a ballot measure had to have signatures from at least 6% of the voters in each of 22 counties. However, on November 30, 2001, the federal court in Idaho found this requirement unconstitutional.  For inquiring minds, the case is Idaho Coalition United for Bears v. Cenarrusa (234 F.Supp.2d 1159). The dreaded Ninth Circuit Court of Appeals affirmed the decision in 2003.

The Legislature, assuming that the provision was unconstitutional, formally repealed it in 2007. However, the Legislature resurrected the scheme in 2013 with the current signature requirement 6% of voters in each of 18 legislative districts. That has not been tested in court yet, but it certainly appears to be on infirm ground in light of the Bear Coalition decision. SB 1159 would be even more vulnerable to challenge.

Article I, section 2 of the Idaho Constitution declares: “All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary.”

The people approved the Idaho Constitution, delegating the legislative power to the Legislature, but then decided to take back some of that power through the initiative/referendum process. It is odd that some in the Legislature now wish to drive a stake into the heart of that people-driven legislative process.

Jim Jones is a former Idaho Supreme Court chief justice and a former Idaho attorney general. His previous columns can be found athttps://JJCommonTater.com.