The fate of a new law that some argue makes it impossible to get an initiative on the ballot is in the hands of the Idaho Supreme Court.
Reclaim Idaho, the group behind the successful 2018 Medicaid expansion initiative, sued the state in May. Another group made up of former elected officials called the Committee to Protect and Preserve the Idaho Constitution also joined their case.
Earlier this year, Republican lawmakers and Gov. Brad Little signed off on legislation requiring campaigns to collect signatures equal to 6% of registered voters across all of Idaho’s 35 legislative districts. That doubled the number of districts needed to qualify under the prior law.
Proponents said the change is necessary to ensure all Idahoans have a say in an initiative or referendum getting on the ballot.
But Deborah Ferguson, an attorney representing Reclaim Idaho, said it was nothing but a “club” used by the legislature to make it harder for citizens to exercise their constitutional initiative rights.
“The heart of this case is the severe burden Senate Bill 1110 requires with no true purpose,” Ferguson said during oral arguments Tuesday.
These “shenanigans from the legislature,” she said, have happened after every successful initiative or referendum in recent years, including efforts to impose term limits on elected officials and repealing controversial education laws. Some governors have vetoed more restrictive proposals in the past.
In the eight years since the Idaho legislature implemented a district requirement, just two of the 15 proposals have qualified for the ballot.
But Justice Robyn Brody questioned whether the court could strictly scrutinize the action of the legislature in this case, since the Idaho Constitution allows lawmakers to set conditions on how the initiative and referendum process works.
Brody also pushed back on Ferguson’s argument that the new law is the only barrier that would keep these issues off the ballot.
“How do we know that it’s because of a district requirement rather than just the very difficult nature of accomplishing this type of citizen legislation?”
“If citizens are having a difficult time exercising their right by making it twice as hard, it stands to reason it only gets harder,” Ferguson said.
The state argued the case should be dismissed for technical reasons, but also because it said there’s no proof the increased district requirement will prevent citizens from exercising their ballot initiative rights.
The only “fundamental right” in the Idaho Constitution for citizens related to the initiative and referendum process is to propose them, said Megan Larrondo, a deputy attorney general.
That drew sharp questions from Justice John Stegner.
“But if the legislature impedes the proposal of legislation, have they impinged on a fundamental right of the citizens?”
“Your honor, respectively, that’s not a question before this court,” Larrondo replied.
“Indulge me,” Stegner said. “Let’s assume that’s hypothetical.”
Larrondo said it’s possible, since the current legal precedent requires that the process be “reasonable and workable.” However, she said the legislature has not blocked a path to the ballot box with this new law.
It also survives legal scrutiny, Larrondo said, because, “It serves a compelling state interest of ensuring there’s a modicum of support distributed statewide.”
But Justice Gregory Moeller said those are two different standards.
“Our legislature passes laws all the time that don’t have support in every part of the state,” Moeller said. “That doesn’t sound like on an equal footing to me.”
Larrondo agreed, but said a representative form of democracy has different checks and balances than direct democracy, like through an initiative or referendum.
“The people are fundamentally the source from which government springs. However, they have adopted a constitution that sets the parameters for government,” she said, adding that Reclaim Idaho wants to “jettison” that framework “because they would rather not be regulated.”
Reclaim Idaho is asking for all geographic requirements related to qualifying an initiative for the ballot be thrown out.
The Idaho Supreme Court will issue a decision in the coming weeks or months.
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