Idaho's ballot initiative process in danger
Democracy should be at the heart of Idaho’s values, but you need to know that your right to the initiative process in Idaho is in serious jeopardy
Throughout our nation’s history, Americans have successfully used ballot initiatives to shape important public policy and gain reforms on a wide range of issues – from education, campaign finance, term limits, gerrymandering, and homeowners’ tax exemptions to women’s suffrage, prohibition, and the eight-hour workday. A true form of “direct democracy,” the ballot initiative process is not partisan. It is a means by which any citizen or organization may gather a predetermined number of signatures to qualify a measure to be placed on a ballot, so it can be voted upon by the people. Citizens in 24 states currently have access to the Initiative and Referendum process, which began in South Dakota in 1898.
Initiatives give ordinary people a direct voice in determining the laws that they must live by.
Initiatives enable citizens to bypass their state legislature by placing proposed statutes directly on the ballot, especially if, year after year, legislators FAIL to do their jobs.
Citizen-led initiatives give a voice to the people who, year after year, have had their efforts stymied, their needs ignored, and their ideas devalued.
It’s necessary to first provide the historical backdrop to fully understand the current issue and the significant danger that citizens in Idaho now face, brought to the fore locally by recent Town Halls in Coeur d’Alene (July 30) Sandpoint (July 23) and Hayden (May 20) and covered in the Coeur d’Alene Press.
In 1889, the participants in the Idaho Constitutional Convention agreed that “[a]ll political power is inherent in the people.” However, Idaho’s history with the Initiative and Referendum process really began 107 years ago in 1912, when an amendment was ratified to clarify this power: “[t]he people reserve to themselves the power to propose laws … independent of the legislature.”
The first Idaho initiative to actually qualify for the ballot came in 1938, 81 years ago, and successfully established the state’s Fish and Game Commission, to remove wildlife-related decisions from the political arena; Idaho voters approved it by nearly 76 percent.
In 1954, Idaho voters passed an anti-pollution measure to ban the dredge-mining that was wreaking havoc on our rivers and streams and protect fish and wildlife. Voters approved it by 85 percent
In 1974, Idaho voters passed an initiative calling for greater disclosure of campaign contributions and expenditures. Voters approved the “Sunshine Laws” by over 87 percent
In 1982, Idaho voters passed an initiative cutting taxes for home-owners. The Homeowner’s Exemption passed by over 56 percent.
In 1994, Idaho voters passed an initiative limiting state and local officials to eight years in office. Voters approved term limits by almost 55 percent.
In response, the Idaho Republican Party made repeal of term limits part of its platform and struck down the law in 2002, being the only state legislature to ever repeal term limits imposed by a citizen’s ballot initiative. Republican legislators in 1997 also put forth a bill resulting in very harsh restrictions on ballot initiatives, requiring signatures from 6 percent of the voters, with that threshold to be met by 22 of 44 Idaho counties before a measure could qualify for the ballot. That was signed into law by former governor, Phil Batt. However, in 2001, the Idaho Federal District Court overturned it as an unconstitutional violation of the one-person, one-vote principle because it gave rural voices more influence than urban voices. The decision that was upheld by the 9th Circuit Court of Appeals in 2003.
In 2012, Idaho voters used a set of 3 initiatives to overturn the state superintendent’s unpopular education reforms (Luna Laws). Voters favored the repeal of the laws by 57 percent, 58 percent, and 66 percent.
Immediately following that successful use of the initiative, Republican legislators put forward SB 1108 which again circumscribed the initiative process, requiring signatures to be collected from 6 percent of voters in 18 of the state’s 35 legislative districts. The reason, said GOP legislators, was to protect the balance between urban and rural regions. It was approved 70 to 31 along party lines.
That is the law we currently have.
However, despite those demanding initiative restrictions, hundreds of committed Idahoans throughout 2017 knocked on thousands of doors, on weekends and evenings, and stood outside of libraries and in public parks -- often in the rain, and snow -- collecting signatures for the Medicaid Expansion Initiative. With a groundswell of activism all across the state, citizen volunteers gathered an unprecedented 75,134 signatures in 21 legislative districts to successfully place the measure on the ballot.
In November 2018, Idaho voters passed that initiative requiring the state to accept federal funds to extend health care to their fellow Idahoans–benefitting nearly 91,000 low-income residents --via Medicaid services primarily paid for by the federal government. Prop 2 was approved across party lines by a clear majority -- 61 percent.
Brent Regan, chairman of the Kootenai County Republican Central Committee and an Idaho Freedom Foundation board member, sued on behalf of IFF to block implementation of the Medicaid expansion initiative after the voters passed it, but was unsuccessful. The Idaho Supreme Court tossed Regan’s lawsuit out, deeming its claims “meritless.”
GOP legislators, led by House Representatives James Vander Woude and Bryan Zollinger, attempted to negate the results of the landslide election with HB 277, mandating a work requirement of 20 hours per week for Medicaid Expansion beneficiaries. While the Senate was considering the House bill, news came that a federal court judge had struck down work requirements in Kentucky and Arkansas, saying they violate the central tenets of Medicaid law. (Just this week, on July 29th, a US district court quashed work requirements for Medicaid Expansion in yet a 3rd state, New Hampshire, holding that federal health officials were “arbitrary and capricious” when they approved the state plans, failing to consider the requirements’ effects on low-income residents who rely on Medicaid for health coverage.)
We finally arrive at the point in time where the most recent attack on YOUR RIGHT to a viable initiative process begins in earnest.
In March 2019, Eagle Republican C. Scott Grow (State Senate – District 14) sponsored Senate Bill 1159, which would have nearly doubled the signature requirements to place a citizen’s initiative on the ballot while giving organizers a third of the current collection time to compile them. Had it been enacted, Idaho would have had the strictest citizen initiative requirements in the nation. Under current law, to place an initiative or referendum on the ballot for a vote, citizen activists must gather signatures from at least 6 percent of Idaho’s registered voters. These signatures must be from 18 of a possible 35 legislative districts and gathered within a time-frame of 18 months. As the current rules are already stringent, they require an enormous amount of grass-roots commitment, time, effort, and financial cost. Only the most widely-approved measures, coupled with well-organized efforts on the part of thousands of volunteers, can realistically enable an initiative to make it onto the ballot – where the voters will make the final decision.
Grow’s SB 1159 would have increased the necessary number of registered voters that must sign petitions from 6 percent to 10 percent, taking the number of signers needed from roughly 55,000 to 92,000. The number of legislative districts required to reach that 10 percent level would be increased from 18 to 32 (of a possible 35) while the amount of time allowed to collect signatures would decrease from 18 months to 180 days (6 months.)
SB 1159 was roundly criticized by four of Idaho’s former Attorneys General (Tony Park, Wayne Kidwell, Dave Leroy, and Jim Jones) who warned that the issue could be found unconstitutional by a state court, and admonished legislators that “placing unreasonable restrictions on the initiative/referendum process should be looked upon with skepticism. After all, the Idaho Constitution clearly specifies that the people have the unfettered right to ‘alter, reform or abolish’ the government whenever they may deem it necessary.”
Former Idaho Attorney General and former Idaho Supreme Court Chief Justice, Jim Jones, in an op-ed for The Coeur d’Alene Press on March 8, 2019, stated: “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.”
Former Idaho Secretary of State, Ben Ysursa, a Republican, told Eye on Boise, “This bill is a full frontal assault on the people’s constitutional right of initiative.”
Former Idaho Senate majority leader and longtime GOP activist, Rod Beck, told the House State Affairs Committee, the bill is “not really necessary, and it’s a solution in desperate search of a problem ... Idaho’s citizens have sparingly used the initiative and referendum process.”
Public opinion was also stunningly negative. According to Marissa Morrison, the governor’s press secretary, Little’s office received more than 6,100 phone calls, voicemails, emails or letters about SB 1159. Of those, roughly 53 people – only 3 percent -- favored of the legislation. Hundreds of people signed up to personally testify against the bill at the Senate State Affairs Committee.
Regardless,18 Idaho State Senators and 41 House Representatives supported the very restrictive SB 1159.
YES votes included many of our District 2, 3,and 4 legislators: Senator Don Cheatham; Senator Mary Souza; Senator Steve Vick; House Rep Vito Barbieri; House Ron Mendive; House Rep Tony Wisniewski; House Rep John Green.
Due to the unprecedented and overwhelming opposition and outcry, Republican lawmakers held an urgent secret session of the House Ways and Means Committee during a lunch break to fashion an alternative, House Bill 296. (There was little notice of the hasty meeting, which wasn’t even announced to the House members, as House rules require.) Sponsored by Ponderay Republican, Sage Dixon (State House- District 1), HB 296 was a trailer bill that modified SB 1159 somewhat, but still increased the necessary number of registered voters who must sign petitions from 6 percent to 10 percent, increased the number of legislative districts from the current 18 to 24 (of a possible 35), and decreased the amount of time allowed to collect signatures from 18 months to 280 days (9 months). Dixon stated publically on March 26, 2019, “I will admit I wanted 35 of 35. Everybody’s voice should be heard in this. But in our negotiation with the Senate we had to bring it back to 32.”
47 House Representatives and 20 Idaho State Senators supported HB 296.
Both bills were approved and sent to the Republican Governor’s desk, with a majority of Republican legislators voting in favor but opposed by all Democrats.
However, shaken by federal court rulings that found these strictures unconstitutional, Governor Brad Little used his veto power for the first time. Despite agreeing “with the goals and the vision of S 1159 and H 296, he wrote: “I reluctantly vetoed S 1159 and plan to veto H 296 because I question the constitutional sufficiency of the bills…The bills invite legal challenges.”
According to ACLU Idaho’s 2019 Legislative report, “No less than five hours after Governor Little’s veto on SB 1159, notice was circulated that Rep. Sage Dixon intended to introduce a new bill to circumvent the Governor’s veto. He actually introduced not one, but four new bills – essentially breaking down each of the components in SB 1159 and HB 296 into four separate bills.”
Noting the undeniable pattern, Betsy Z. Russell, Boise Bureau Chief of the Idaho Press, writes, “Backers of the bill have insisted it’s not retaliation for Idaho voters successfully mobilizing volunteer signature-gatherers and passing Proposition 2 in November to expand Medicaid, after lawmakers resisted taking any action on the issue for six straight years. But the last two times Idaho tightened its rules for ballot measures, both were after successful measures passed. After Idaho voters repealed the “Luna Laws” on school reform in 2012 in three successful referendums — the first since 1936 — lawmakers added the current 18-district requirement. After Idahoans approved term limits in 1996, and lawmakers repealed them in 1997, the Legislature imposed more far-reaching restrictions, but they were overturned in federal court. Far too many politicians across the country do not speak for their constituents at federal or state levels.”
Ballot initiatives allow the public to step up and have a direct voice, and when this process of direct democracy proves more effective than the customary actions of a party, a politician, or a deep-pocket donor, far too many Idaho legislators want to drown out the voices of their constituents. As former Supreme Court Justice Jones stated in his “My Turn” column in The Coeur d’Alene Press (July 26, 2019) “The legislators who claim that the initiative is harmful to the interests of rural voters can point to no measure approved by the people during Idaho’s statehood that has caused damage to rural interests. The argument is hollow because the initiative only allows a legislative measure to be placed on the ballot for a vote of the people. The petition signers do not create laws. Once a measure qualifies for the ballot, all Idahoans, rural and urban, vote it up or down. What is to fear from that? …The legislation Governor Little vetoed earlier this year called for an initiative petition to have signatures from 10 percent of registered voters in each of 32 of Idaho’s 35 legislative districts in order to be placed on the ballot. It was justified as a means of allowing rural voters to participate in the legislative process. It was clearly an attempt to frustrate the power of voters, rural and urban, to exercise their constitutional legislative power.”
While it’s true that ballot initiatives can be poorly written or can conceal secret profit motives or agendas (both private or public), those same flaws can apply to bills that legislators themselves propose and vote on.
Legislators often bemoan the lack of citizen involvement in politics and government and give lip service (“mouth honor/breath”) to the value of civic engagement and voter participation, claiming they are “deeply committed to the initiative process in Idaho.” However, actions speak far louder than words.
After all, 59 legislators supported the oppressive SB 1159. (Senators Anthon, Bair, Burtenshaw, Cheatham, Grow, Harris, Heider, Hill, Lakey, Lee, Lodge, Mortimer, Patrick, Rice, Souza, Thayn, Vick, Winder; House Representatives Andrus, Armstrong, Barbieri, Blanksma, Boyle, Chaney, Christensen, Collins, Crane, Dayley, DeMordaunt, Dixon, Ehardt, Furniss, Gestrin, Brooke Green, John Green, Harris, Holtzclaw, Kauffman, Kerby, Kingsley, Mendive, Monks, Moon, Moyle, Nichols, Palmer, Raymond, Ricks, Shepherd, Stevenson, Syme, Vander Woude, Wagoner, Wisniewski, Young, Youngblood, Zito, Zollinger, and Speaker of the House, Bedke) https://legislature.idaho.gov/sessioninfo/2019/legislation/S1159/
And 67 legislators approved the modified but still onerous HB 296. (House Representatives Addis, Amador, Anderst, Andrus, Armstrong, Barbieri, Blanksma, Boyle, Chaney, Christensen, Collins, Crane, Dayley, DeMordaunt, Dixon, Ehardt, Furniss, Gestrin, Gibbs, Brooke Green, John Green, Harris, Holtzclaw, Horman, Kauffman, Kerby, Kingsley, Lickley, Marshall, Mendive, Monks, Moon, Moyle, Nichols, Palmer, Raybould, Raymond, Ricks, Shepherd, Stevenson, Syme, Vander Woude, Wagoner, Wisniewski, Young, Youngblood, Zollinger, and Speaker of the House, Bedke; Senators Agenbroad, Anthon, Bair, Bayer, Burtenshaw, Cheatham, Den Hartog, Grow, Heider, Hill, Lakey, Lee, Lent, Lodge, Mortimer, Rice, Souza, Thayn, Vick, Winder) https://legislature.idaho.gov/sessioninfo/2019/legislation/H0296/
Is it any wonder that voters have a deepening distrust of most politicians and the country’s electoral system, bordering on a complete loss of faith in government?
Let me be clear:
This isn’t about providing rural representation or balancing urban and rural representation.
In an August 2, 2019 op-ed piece, Justice Jones wrote: “Numerous lawmakers have made the claim that the initiative and referendum (process) had to be severely restricted in order to protect rural Idahoans. This argument overlooked the fact that Idaho rural voters wrote these legislative checks and balances into the Idaho Constitution in 1912 precisely to protect farmers from powerful special interests… The legislators who claim that the initiative is harmful to the interests of rural voters can point to no measure approved by the people during Idaho’s statehood that has caused damage to rural interests. The argument is hollow because the initiative only allows a legislative measure to be placed on the ballot for a vote of the people.” https://magicvalley.com/opinion/columnists/jones-do-the-initiative-and-referendum-harm-rural-voters/article_550c41c6-c2b8-536e-8faa-a560089893c5.html
This isn’t about better transparency or attempting to “control big money from out of state.”
Legislators could easily offer simpler remedies to those concerns without gutting the initiative process and disenfranchising all citizens.
This isn’t about “updating the initiative process for today’s technology.”
Signature-gathering isn’t an electronic process. Idaho law mandates that signatures be hand-written on a paper petition, collected in the presence of the circulator (a human), that signers “personally” place their name on the petition, that the petition be formally notarized, and that each voter’s information then be validated by the County Clerk.
This isn’t about preventing “30 or 40 initiatives to crowd the voter ballot each election.”
Idaho citizens have used their right to the ballot initiative responsibly and judiciously. Very few issues qualify for Idaho’s ballot because the process already includes stringent requirements. In 107 years of Idaho history, only 28 ballot measures have been successfully placed before voters. Even fewer issues receive Idahoans’ approval when they do appear on the ballot. Just 15 of those 28 initiatives have passed --an average of only one every 7 years.
These are mere pretexts, craven ploys, smokescreens to cloak the true purpose.
This is about a clear disdain for the people.
This is about suppressing the ideas of the people and subverting their will.
This is about marginalizing and disenfranchising us.
This is about silencing our voices and rendering us powerless.
And yes, this is about “teaching voters a lesson” for their audacity in using the initiative process to produce successful legislation.
Born of entrenched concentrated power and bred by ONE-party rule since the late 1950s, this is a vengeful attack on the rights of all 856,191 Idaho voters, no matter what their party affiliation. https://sos.idaho.gov/elect/VoterReg/2019/07/partybydistrict.html
What most sticks in the craw of pro-SB 1159 and pro-HB 296 legislators is resentment towards their perceived loss of privilege.
As Republican State Senator Mary Souza so clearly puts it in her op-ed in the Coeur d’Alene Press, (March 22, 2019) “…many folks aren’t clear on the initiative process. Once it has enough signatures and passes elections, the initiative bypasses the Legislature entirely and is signed into law, or not, by the governor. WE have nothing to do with it. No review. No vetting. No committee meetings.” (Emphasis added.)
While SB 159 and HB 296 were defeated for the short-term, Idaho legislators and lobbyists have plans to reintroduce initiative restrictions during the next legislative session. Rebecca Schroeder, Executive Director of Reclaim Idaho, has stated, “Mark my words: These attacks on our initiative rights are absolutely coming back in the next session.” Justice Jones told the standing-room-only crowd at the Coeur d’Alene Town Hall July 30th, “I’m the kind of person who believes in constitutions. I believe in the notion that all political power is inherent in the people … If you restrict initiatives so people can’t use their rights, all the power will eventually reside in the Legislature. I believe very strongly in citizens having their initiative rights… The initiative process needs to be fair for all and accessible to all.”
The Declaration of Independence asserts that we the people have a duty to change a government that is destructive of the people’s rights.
The proper response to tyranny is to oppose it with every resource at our command.
Please, join me in that effort.
Contact Governor Brad Little’s office at 208-334-2100 or governor@gov.idaho.gov
Contact your legislators directly and subscribe to their mailing lists: https://legislature.idaho.gov/legislators/whosmylegislator/
Research Reclaim Idaho: https://www.facebook.com/reclaimidaho/ or https://www.reclaimidaho.org/
Attend a Reclaim Idaho Town Hall meeting or a Door Knocking event around the state: https://www.facebook.com/pg/reclaimidaho/events/
(There have been over 60 events since March 2019 and there are many more to be scheduled all around the state.)
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Elizabeth Rose is a 27-year resident of Idaho, retired high school teacher and registered unaffiliated/independent voter.