One of the most shameful acts of the 2021 legislative session was a law that required initiative campaigns to gather signatures from 6% of registered voters in all 35 of the state’s legislative districts, rather than the 18 districts that had been required up to that point.
This week, the Legislature’s concerted effort to make citizen-led voter initiatives impossible hit a brick wall in the Idaho Supreme Court.
In a forceful and clear-eyed opinion written by Justice Greg Moeller, who long served on the district bench in Rexburg, the court unanimously ruled that the Legislature’s effort to do away with the ballot initiative was unconstitutional — and left open the question of whether even the 18-district process, enacted as retaliation after the people repealed the Luna Laws by referendum, meets constitutional muster.
Though the unanimous opinion was well-crafted and expertly reasoned, there wasn’t much about it that lawmakers should have found surprising. It was essentially the same thing the Idaho Attorney General’s office, past attorneys general, past Supreme Court justices, past secretaries of state, the governor, academics and newspaper editorial boards told them repeatedly: The Legislature does not have the right to wind so much red tape around the initiative process that it is effectively abolished.
Or as Moeller put it: “The (Secretary of State) and Legislature’s perspective — that the legislature has the authority to limit the people’s initiative and referendum rights, even to the point of near extinction — is simply not supported by the straightforward reservation of a portion of the total legislative power to the people in the Idaho Constitution.”
It’s worth remembering that the Legislature used your tax dollars to defend its effort to eliminate your rights.
The ironically named Constitutional Defense Fund — which exists for the purpose of defending the Legislature in court when it violates the Constitution — has paid out about $3.2 million of your tax dollars since it was created, as Betsy Russell of the Idaho Press noted in December. That figure doesn’t include the more than $180,000 the Legislature spent defending its initiative-killing law or the as-yet-unknown attorney fees for Reclaim Idaho and the Committee to Preserve and Protect the Idaho Constitution that the Legislature has been ordered to pay.
Along the way to millions of wasted tax dollars, the Legislature has violated just about every tenet of the U.S. and Idaho constitutions you could think of, including the Equal Protection Clause, the First Amendment and the Fourth Amendment. (To their credit, they have not yet violated the Third Amendment’s prohibition against quartering soldiers in civilian homes during peacetime, but there’s always next session.)
And all this has been led by lawmakers who like to ceremoniously heft the Constitution like a sword for them to wield in battle.
It is not.
It is the chain that restrains their hand.
It would do them some good to stop using it as a prop and begin studying it seriously.
In Moeller’s words: “...the legislature’s duty to give effect to the people’s rights is not a free pass to override constitutional constraints and legislate a right into nonexistence, even if the legislature believes doing so is in the people’s best interest.”
Let the Supreme Court’s opinion serve as a stark reminder to Idaho lawmakers of what Moeller called “the democratic ideals that form the bedrock of the constitutional republic created by the Idaho Constitution....”
Those ideals are not obscure. They are stated plainly. “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,” reads the Idaho Constitution.
Lawmakers, the people are your bosses. You are not theirs. Remember it next time. And stop wasting their money to defend your unconstitutional acts.