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Idaho’s Supreme Court Harms Efforts to Protect Idahoans’ Independence

Several leftist groups are using Idaho’s initiative process to achieve liberal reform. Initiatives allow citizens to make laws directly through the vote. Voters are presented with a question of public concern. If a majority supports an answer, it becomes law. Reclaim Idaho, supported with big money from Idaho’s hospitals, led a successful effort to expand Medicaid in 2018 through the initiative process. Reclaim also using the initiative process to seek a historic $300 million annual increase Idaho’s education spending.

Supporters of the Medicaid initiative outspent opponents $1.75 million to under $100,000 according to the Secretary of State’s Office. This is typical. Interest groups spend big money on initiatives, as study after study in states liberal and conservative show. Groups stand to gain great profits from successful initiatives, while each member of the public has a smaller and more difficult to define interest in stopping initiatives. Idaho Education Association will spend big on the initiative for increases in teacher pay. Voters are easily swayed by incomplete and misleading advertising especially when the sides are unequally funded.

But first these groups must get questions on the ballot. States recognize how special interests can hijack the initiative process, so they regulate access to the ballot to ensure initiatives have broad enough support to justify the public attention. An initiative can get on the ballot only if it collects a certain number of signatures, gathered in a certain way.

Conservatives in Idaho’s legislature have tried to protect the state from monied interests. Before 2020, Idaho law required 6% of voters in 18 districts—more than half of the legislative districts—to approve the measure before it could get on the ballot. 6% of voters statewide also had to sign. In 2020, legislators proposed SB 1110 that required signatures from 6% of eligible voters in all thirty-five legislative districts.

As the legislature deliberated on SB 1110, Attorney General Lawrence Wasden issued an advisory opinion to the legislature defending the law as permissible under Idaho’s Constitution.

The legislature passed the bill by wide margins. Gov. Little signed the law, but expressed concerns that it violated Idaho's Constitution. “In considering future legislation, I encourage the Idaho Legislature to ensure that rights are secured by the constitution remain accessible to the people while also securing that each initiative and referendum have an appropriate level of statewide support.” This sounds eerily like Brad Little’s actions around the recent Heartbeat Bill, where he signed the bill but expressed concerns that it violated Idaho’s Constitution.

The specter of Gov. Little signing laws that he believes unconstitutional is truly stunning. Watching Gov. Little sign such bills time after time and then watching the Supreme Court confirm his view makes it appear as if this is part of Idaho’s establishment playbook.

The initiative case went to Idaho’s Supreme Court. In Reclaim Idaho v. Denney, the Idaho Supreme Court sided with Reclaim Idaho against the Idaho legislature’s attempt to regulate the initiatives process. The Supreme Court declared access to initiatives a fundamental right and claimed that the Secretary of State (Denney) and the Legislature “failed to represent a compelling state interest for limiting” access to the ballot.

Reclaim Idaho would like to see the current limits on signatures erased or reduced, allowing for fewer signatures and in fewer locations or no locations. The Supreme Court’s very broad reasoning seems to leave little space any regulations.

Instead, Idaho’s legislature might consider taking another shot at reforming the initiative process. Many options are available. According to the Supreme Court, 18 legislative districts with 6% each and 6% statewide is, apparently, acceptable. All 35 legislative districts with 6% in each is, apparently, unacceptable.

The legislature should try to find a sweet spot between the two standards. Next session, it should try 5% in each legislative district or 6% in 23 or 24 legislative districts (roughly 2/3rds of the districts) with 6% statewide or some combination of the two.

Idaho’s legislature should act to ensure that all such initiatives have wide support throughout the state before it opens itself up to such big spending affairs, where oligarchs are more likely to have their way than the people of the state. Revisiting how Idaho’s Supreme Court is staffed may also be in order.

Idaho’s Supreme Court has made Idahoans even more vulnerable to laws shaped by special, monied interests.

Photo from Idaho Supreme Court Annual Report


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