Looking at the legality of SB 1159

The last few weeks in the Idaho Legislature have left a lot of us feeling hopeless. We’ve all heard about Senate Bill 1159, which would essentially put an end to any grassroots ballot initiatives in Idaho. We’ve heard that this bill was instigated by a paid lobbyist from Moneytree. We’ve heard that it is backlash and a direct result of the citizen-driven passage of the Medicaid Expansion initiative in November. Instead of asking why our legislators have betrayed us, my first instinct as a paralegal is to examine the legality of the bill and whether it would hold up in court.

This is the third time in 22 years that our Legislature has attempted to limit our right as provided by the Idaho Constitution. “The people reserve to themselves the power to propose laws, and enact the same at the polls independent of the Legislature.” Idaho Const. art. III, § 1. Why does our Legislature continue to challenge this?

In 1997, the Legislature amended the statute that governs the requirements for ballot initiatives, to require that the signatures of 6 percent of registered voters had to come from 22 of Idaho’s 44 counties. This law was overturned in federal court in 2001 as a violation of the one person, one vote rule because it placed higher value on the votes from rural counties.

In 2013, only five months after the citizens of Idaho overturned the Luna laws through referendum vote, the Idaho Legislature passed a law requiring that the 6 percent of registered voter signatures come from 18 of Idaho’s 35 legislative districts in order to qualify a ballot initiative. Just as with SB 1159, the Idaho Farm Bureau backed the bill and arguments in favor touted more involvement from rural voters was needed.

When Gov. Otter signed this law into effect, he stated that he didn’t want ballot measures to be driven by the “great state of Ada.” This statement is identical to Sen. Grow’s recent testimony in support of SB 1159. The bill in 2013 had bipartisan opposition, just like SB 1159. So, if the Legislature enacted a law in 2013 to effectuate stricter requirements and rural involvement, why are we now facing legislation supported by the exact same arguments?

The answer is quite simple: Because our representatives are no longer working for us, but against us. Our local senators, Don Cheatham, Mary Souza and Steve Vick, all voted in favor of SB 1159.

While we hope that Gov. Little will give weight to the petition circulating, urging him to veto the bill, we surely can’t count on it given the massive amount of phone calls, emails and testimony in opposition that the Senate and a House committee received before passing the bill along anyway. What can we count on then, if not the Legislature and governor?

The judicial system, which often acts as the final arbiter in constitutional issues such as this, will have the chance to uphold our constitutional right if our elected officials fail to do so. In fact, the courts have continuously preserved our constitutional rights on this very issue.

In 2006, the Ninth Circuit Court of Appeals upheld a Nevada judgment that found Nevada’s law, which required signatures from 10 percent of eligible voters in at least 13 of Nevada’s 17 counties, violated the Equal Protection Clause. Am. Civil Liberties Union of Nevada v. Lomax, 471 F.3d 1010 (9th Cir. 2006). The Nevada Constitution guarantees its citizens the right to legislate by initiative. The Court found Nevada’s law regarding ballot initiatives to be unconstitutional because it gave more weight to votes of residents from sparsely populated areas than it did the votes of residents in densely populated areas. Id. at 1012. The Equal Protection Clause guarantees that the law shall apply equally to all citizens.

In 2003, the Ninth Circuit Court of Appeals again looked to the 14th Amendment when advocacy groups in Idaho challenged a state statute which required that the signatures from 6 percent of registered voters come from at least half of the state’s counties in order to qualify an initiative. Idaho Coal. United for Bears v. Cenarrusa, 342 F.3d 1073 (9th Cir. 2003). The district court held that the unequal treatment of voters under this law violated the Equal Protection Clause and the Ninth Circuit Court of Appeals upheld this decision on appeal. Id. at 1074.

Similarly, an Illinois law was challenged for requiring that petitions to nominate candidates for general election required 200 signatures from each of at least 50 counties. Moore v. Ogilvie, 394 U.S. 814, 89 S. Ct. 1493, 23 L. Ed. 2d 1 (1969). The Supreme Court found this law to be a flagrant violation of the Due Process Clause and Equal Protection Clause. Id.

In 2005, the United States District Court in the District of Montana held that Montana’s ballot initiative rule, which required signatures from 5 percent of eligible voters in at least half of the state’s counties, was unconstitutional under the Equal Protection and Free Speech clauses of the United States Constitution. Montana Pub. Interest Research Grp. v. Johnson, 361 F. Supp. 2d 1222 (D. Mont. 2005).

Article I § 2 of the Idaho Constitution states that political power is inherent in the people and the government is instituted for their equal protection and benefit. So, what happens when our government fails to uphold its duty to provide equal protection under the law? It’s times like these that we can be thankful for the checks and balances guaranteed by the separation of powers. We can always rely on the courts to uphold our right to equal protection as they’ve done time and time again.

This is neither a Republican issue nor a Democrat issue, this is a constitutional rights issue. Interpreting our Constitution is what the Judiciary branch does best. Don’t lose hope, Idaho! Our fight isn’t over yet.

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Laura Tenneson is a Hayden resident.