BOISE — Reclaim Idaho and the Committee to Protect and Preserve the Idaho Constitution have filed suit in the Idaho Supreme Court to declare SB 1110, which sharply increases the hurdles to qualify any voter initiative or referendum for the Idaho ballot, unconstitutional.
The lawsuit also seeks to overturn 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.
By passing the bills, the lawsuit says, “The legislature has effectively taken away the people’s right to make or repeal law,” a right guaranteed in the Idaho Constitution since 1912.
“We are filing this lawsuit on behalf of the people of Idaho,” said Luke Mayville, a political scientist and co-founder of Reclaim Idaho, the group that successfully pushed the Medicaid expansion initiative in 2018.
“When the Legislature passed SB 1110 and the governor signed it into law, they were snatching away a fundamental right that has been enshrined in our Constitution for over 100 years,” Mayville said. “This lawsuit is our effort to restore that right.”
The Committee to Protect and Preserve the Idaho Constitution is a committee of lawyers, led by two former Idaho attorneys general, that formed in March to “protect and preserve the Idaho Constitution” from “repeated attacks by the Idaho 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.
The two groups, represented by the law firm of Ferguson Durham, are asking the state’s highest court to declare the geographical-distribution requirements in Idaho law for qualifying ballot measures unconstitutional and void them, leaving just the requirement for gathering 6% of signatures of registered voters statewide. SB 1110 added a new requirement for 6% of registered voters’ signatures from each of Idaho’s 35 of legislative districts, a requirement the groups said would make exercising the right to initiative or referendum impossible.
Previous law, passed in 2013, set a geographical distribution requirement at 6% of registered voters in 18 of Idaho’s 35 legislative districts. If it’s successful, the lawsuit would do away with all geographic distribution requirements.
The new signature requirement is especially prohibitive for referendum proposals, the lawsuit says, which have only 60 days after the end of a legislative session to qualify a measure for the ballot. While initiatives propose a voter-initiated law, referenda ask the citizens to weigh in on, and consider repealing, a law the Legislature has passed. That’s what Idaho voters did in 2012 when they overwhelmingly repealed the education reforms known as the “Luna Laws” in three referenda on that year’s November ballot.
The Committee to Protect and Preserve the Idaho Constitution has filed a referendum to have voters invalidate SB 1110; it is awaiting an Idaho Attorney General’s review before it can be cleared for signature-gathering.
The lawsuit also requests the case be expedited for hearing by the high court as soon as possible, and seeks attorney fees.
In addition to Friday’s filing, another legal challenge was filed with the Idaho Supreme Court on April 26 by Michael Gilmore, a former longtime deputy Idaho attorney general who represented the state before the high court and federal courts on numerous occasions. Gilmore’s filing also challenges SB 1110 as unconstitutional, and cites his standing as a voter who has signed and voted for initiatives and referenda in the past, and wants to sign the new referendum on SB 1110.
Gilmore filed his lawsuit against Idaho Secretary of State Lawerence Denney; the Idaho Legislature already has filed a motion to intervene in the case to defend the law.
It is possible that the two cases could get combined so they could be heard together, though that’s not yet clear.
Former Idaho Attorney General Jim Jones, a member of the Committee to Protect and Preserve the Idaho Constitution, said of the initiative and referendum in Idaho, “It’s been rarely used. And every time it is effectively used, then the Legislature tries to make it tougher to get anything on the ballot.”
The two groups’ lawsuit details 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. Lawmakers included no procedures on the ballot measure approving the constitutional amendment, leaving that for the Legislature to pass afterward; then they didn’t pass successful enacting legislation until 1933.
In 1915, the Idaho Legislature passed a bill that set the signature threshold at 15% of voters in the last gubernatorial election in each of Idaho’s 44 counties, and 10% for a referendum; made it a crime for volunteers to carry petitions for signatures; and required that petitions remain in the offices of state officials and be signed in the presence of a judge or other state official. Then-Gov. Moses Alexander vetoed the bill, saying it would have been “fatal” to the constitutional right, and noting that no other state had such harsh restrictions.
From 1933 to 1997, the requirement was 10% of votes cast in the last election, with no geographical distribution requirement. In 1994, Idaho voters passed a term limits initiative. The Legislature repealed it in 1997, and also increased the signature requirement for initiatives and referenda by setting it at 6% of registered voters statewide, which is a far higher number than 10% of those who voted in the last election; plus added the first geographical distribution requirement, saying proponents also needed 6% of registered voters in at least 22 of Idaho’s 44 counties. That requirement was struck down in federal court as an unconstitutional equal protection violation, because county populations in Idaho vary widely.
Another bill passed in 1984 sought to double the signature requirement from 10% to 20%. “According to the Idaho legislative archives, the bill was introduced without a hearing, voted on and sent to Gov. (John) Evans’ desk within 24 hours,” wrote former longtime Idaho Secretary of State Ben Ysursa, a member of the Committee to Protect and Preserve the Idaho Constitution, in a declaration filed with the lawsuit. Evans vetoed it on grounds similar to Alexander’s in 1915.
In 2019, Gov. Brad 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, too, cited concerns about constitutionality.
Scott Graf, spokesman for the Idaho Attorney General’s office, said of the two legal challenges, “Since both are pending, we will decline comment.”
Little’s office also had no comment Friday. In his signing letter on SB 1110 this year, Little 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.”