Proposal to change Idaho’s ballot initiative process voted down

A proposed amendment to the Idaho Constitution that would have increased the threshold to qualify a ballot initiative or referendum died Thursday after failing to get the necessary two-thirds support in the Idaho House of Representatives.

Senate Joint Resolution 101a would have increased the threshold to qualify a ballot initiative or referendum to 6% of the legal voters in each of the state’s 35 legislative districts at the time of the previous general election. That would be up from the current threshold of 6% of voters in 18 of the 35 legislative districts.

Legislators who opposed Senate Joint Resolution 101a said it would have made it functionally impossible to qualify a ballot initiative or referendum for the ballots and given any one legislative district “veto power” over the other 34 districts.

Ballot initiatives and referendums are a form of direct democracy for the people of Idaho, independent of the Idaho Legislature. A ballot initiative provides the ability for the people to propose and vote on new laws, like the 2018 Medicaid expansion ballot initiative. A referendum is the ability for the people to approve or reject laws passed by the Idaho Legislature, such as the 2012 referendum regarding the Students Come First laws, the so-called Luna laws voters rejected.

In addition to Medicaid expansion, the Idaho Department of Fish and Game and the homeowner’s exemption have all been enacted via the ballot initiative in Idaho.

Idaho Supreme Court struck down similar initiatives law in 2021

In 2021, the Idaho Supreme Court threw out a previous bill, Senate Bill 1110, that also would have increased the threshold to qualify an initiative and referendum to 6% of voters in all legislative districts, saying it was unconstitutional. In the 2021 ruling, the Idaho Supreme Court found “the initiative and referendum powers are fundamental rights, reserved to the people of Idaho.”

Rep. Mark Sauter, R-Sandpoint, voted against Senate Joint Resolution 101a Thursday after saying most Idahoans he’s heard from are opposed to it.

“I’ve had an overwhelming number of calls and emails suggesting that I red-light this 101,” Sauter said. “Most of those have said that they will lose their voice … The people that have contacted me have all said that it really takes away their freedoms.”

Legislators say they couldn’t support resolution due to drafting error relating to ‘legal voters’

Reps. Britt Raybould, R-Rexburg, and Ilana Rubel, D-Boise, told legislators it appears there is a drafting error in the resolution that makes it different from the way it was pitched to legislators. They said the resolution was intended to raise the threshold to 6% of the votes cast in the previous general election in each legislative district. However, the resolution was written to apply to 6% of the “legal voters” at the time of the last election, which they interpreted to mean 6% of registered voters, not just 6% of the people who actually voted.

“It creates a threshold much higher than I think was intended by the bill’s sponsors,” Raybould said. “So instead of roughly 50,000-some odd (signatures) being collected in the state, double that would need to be collected to reflect the total number of registered voters in the state.”

“The language matters,” Raybould added. “And I believe the language of this legislation is flawed despite the intentions of those who put it forward.”

Raybould described the issue as “simply a mistake.”

More than half of the Idaho House supported it anyway. Legislators who supported Senate Joint Resolution 101a also said the new proposal was different than the previous bill the Idaho Supreme Court ruled was unconstitutional because this time voters would have been able to weigh in on whether to amend the Idaho Constitution.

Rep. Dale Hawkins, R-Fernwood, said he supported Senate Joint Resolution 101a because it was about getting more people from all parts of the state involved in the initiative and referendum process.

“I would say that this gives a voice to all of the state,” Hawkins told legislators. “For somebody in District 1 or 2 or 4 or 5 thinking their voice would be limited, I would contend that this would be the time that they would get a say.”

However, opponents said Senate Joint Resolution 101a is about the process to qualify an initiative or referendum for the ballot and blocking them before they can ever reach voters. All Idahoans would have a say during the election when the initiative or referendum is on the ballot for a vote.

Rubel said making the change in Senate Joint Resolution 101a would be like requiring bills to receive support from legislators in all 35 districts before they could pass. She argued such a change would grind the legislative process to al halt.

Rubel said the initiative and referendum process has been a fundamental right in the Idaho Constitution for more than 100 years and the proposed changes would eradicate the initiative and referendum process.

“This is the only thing the people have to break the emergency glass when we are not doing what they want,” Rubel said.

In the end, the Idaho House voted 39-31 to pass Senate Joint Resolution 101a on Thursday, but it died because it requires two-thirds support to pass an amendment to the Idaho Constitution. The measure is now dead for the session, and Senate Joint Resolution 101a will not go to Idaho voters.

This story was originally published March 30, 2023 by the Idaho Capital Sun.