OPINION: Idaho Constitution took hits this session
Jim Jones
Before commencing work, every Idaho legislator must solemnly swear to support the Idaho Constitution. That is pretty much a no-brainer.
Sad to say that in the recent legislative session we witnessed any number of violations of that oath. Instead of abiding by the requirements of Idaho’s Constitution, legislators often ignored or defied that foundational document.
The Idaho Supreme Court ruled in 2021 that voter initiatives and referendums stand on equal ground with the right to vote as fundamental rights of Idaho citizens. Any restriction on those rights will be subjected to “strict scrutiny” by the courts. That is, there must be compelling justification for imposing the restrictions.
Many legislators simply don’t want voters to have the right to make their own laws with the initiative, or to veto laws they don’t like with the referendum. Idaho voters last used the referendum to veto the unpopular Luna education laws in 2012.
In keeping with its hostility to voter rights, the House passed House Bill 652, a clearly unconstitutional bill allowing signatures to be removed from initiative and referendum petitions after it is too late to get additional signers. The removal process was not secure, opening the door to fraudulent removals. Luckily, the bill died in the Senate.
Legislators were successful in requiring those who gather signatures for ballot measures to provide written and oral disclosures if they are being paid. Senate Bill 1377, which the Governor signed into law, requires the written disclosure on every page of the petition, plus certification under oath that oral disclosure was made.
It also requires paid gatherers to wear a badge proclaiming his or her paid status. Gatherers who are not being paid must swear under oath that they are volunteering their work.
These restrictions are unconstitutional burdens on the ballot measure process. Dorothy Moon, the head of the extremist branch of the Republican Party, has falsely claimed that Reclaim Idaho pays its signature gatherers. Quite to the contrary, its Open Primaries Initiative is fueled by non-paid volunteers who believe that all Idahoans, regardless of party affiliation, have the right to choose their leaders.
The last ballot measure where paid signature gatherers were used was the horse-racing initiative, which failed in 2018. Senate Bill 1377 is merely a flawed solution to a non-existent problem. It will not stand up in court when and if it is challenged for violating the Constitution.
Just as the legislative session was coming to a close, Rep. Brent Crane threw a clearly unconstitutional bill into the legislative hopper. House Bill 753 was such a mishmash that it could not possibly have been enforced, but it caused severe heartburn for the agricultural and construction industries that rely heavily on immigrant labor.
The bill would have made it a criminal offense “to enter this state directly from a foreign nation at any location other than a lawful port of entry.” That would only apply to someone who stumbled across the Canadian border outside of the Porthill border crossing.
It may be that Crane was targeting those mythical Canadians that Dorothy Moon falsely claimed were crossing the border in 2022 to vote in Idaho. Although the bill would have been stricken down in federal court, it passed the House with a 53-15 vote. The Senate failed to act on the bill, saving the state a bundle trying to defend it in court.
There are too many unconstitutional bills to list here but we could add House Bill 521, a bill that violates Idaho’s constitutional prohibition against legislation that contains more than one subject. That conglomeration has been signed into law.
House Bill 713 and Senate Bill 1347 were ditched when it was made clear to sponsors that both bills violated the Governor’s constitutional power to fill vacancies on the state’s district and appellate courts. And, of course, House Bill 710, which targeted libraries and librarians, is replete with constitutional concerns.
The question is, why can’t legislators restrain themselves from promoting and passing legislation that violates the Idaho Constitution?
Some legislators claim the Attorney General will not answer their questions on constitutionality. The AG takes the preposterous position that he won’t give guidance where the constitutionality of a bill is in question.
Constitutionality is often raised in debate but routinely ignored. The only people who will come out ahead are lawyers who can win big attorney fee awards against the state for successfully challenging unconstitutional laws.
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Jim Jones is a Vietnam combat veteran who served eight years as Idaho Attorney General (1983-1991) and 12 years as a Justice on the Idaho Supreme Court (2005-2017). His columns are collected at JJCommonTater.com.
LINKS:
Idaho Supreme Court ruled in 2021:
https://isc.idaho.gov/opinions/48784summ.pdf
Luna education laws:
https://www.edweek.org/policy-politics/idaho-voters-scrap-luna-laws/2012/11
House Bill 652:
Senate Bill 1377:
https://legislature.idaho.gov/sessioninfo/2024/legislation/S1377/
House Bill 753:
https://legislature.idaho.gov/wp-content/uploads/sessioninfo/2024/legislation/H0753.pdf
Dorothy Moon:
It passed the House with a 53-15 vote:
House Bill 521:
https://legislature.idaho.gov/sessioninfo/2024/legislation/H0521/
Some legislators claim: