Idaho Supreme Court

The Idaho Supreme Court building in Boise.

BOISE — A unanimous Idaho Supreme Court has overturned a restrictive new initiative law passed by the Idaho Legislature this year, ruling it unconstitutional.

The decision restores Idaho’s initiative laws to what they were at the start of this year. The justices also awarded attorney fees and costs to Reclaim Idaho and the Committee to Protect and Preserve the Idaho Constitution under the “private attorney general doctrine,” the first time the doctrine has been invoked in 41 years.

“The contested legislation constituted a grave infringement on the people’s constitutional rights,” the court held, “making this matter vital to the public interest to people across Idaho.”

“Thousands of Idahoans will be breathing a sigh of relief,” said Luke Mayville, co-founder of Reclaim Idaho, the group that successfully sponsored the 2018 Medicaid expansion initiative and brought the lawsuit challenging the new law. “Those of us directly involved in the case are ecstatic. It’s an historic day. A fundamental right of the people of Idaho has been restored.”

The groups, in their lawsuit, had asked the court to remove all geographic requirements for initiative qualification. The court opted instead to return to the previous version of the law, requiring signatures from 6% of registered voters in 18 of Idaho’s 35 legislative districts. But it did so “without prejudice,” simply because the 18-district requirement hadn’t been directly challenged in the case.

“We have not decided the question of whether ... (the) 18 legislative district requirement is also unconstitutional,” the court stated in its ruling.

SB 1110, which the Legislature passed this year and Gov. Brad Little signed into law April 17, increased the number of signatures required to qualify a voter initiative or referendum measure for the Idaho ballot from those of 6% of registered voters in each of 18 of Idaho’s 35 legislative districts, to 6% in each and every one of the 35 districts.

Little, in his signing letter on SB 1110, wrote, “Whether SB 1110 amounts to an impermissible restriction in violation of our Constitution is highly fact dependent, and ultimately a question for the Idaho Judiciary to decide.”

Medicaid bus

Reclaim Idaho drove a green-painted RV around the state to promote its successful Medicaid expansion initiative in 2018.

The court was clear in its ruling. “We conclude that the Legislature has acted beyond its constitutional authority and violated the people’s fundamental right to legislate directly,” the court’s opinion stated.

The justices also overturned a 2020 law barring any initiative or referendum from taking effect until July 1 of the year following the November election, giving the Legislature a chance to repeal it before it takes effect.

“It infringes on the people’s reserved power to enact legislation independently of the Legislature,” Justice Greg Moeller wrote for the majority.

Justice Robyn Brody dissented on a point regarding the standard of review, but concurred in the result.

Justice John Stegner concurred, but disagreed with the majority’s decision to dismiss a second lawsuit, from former longtime Deputy Idaho Attorney General Michael Gilmore, for lack of standing.

“The initiative and referendum powers are fundamental rights, reserved to the people of Idaho, to which strict scrutiny applies,” the ruling stated.

Senate President Pro Tem Chuck Winder, R-Boise, said he was surprised by the unanimous ruling. “I’m a little bit surprised that they would rule the way they did and as narrowly as they did, and not give more deference to the Legislature and our ability to determine the process for initiatives,” he said. “But that is the ruling, and we’ll have to live with it.”

House Speaker Scott Bedke said in a statement that he and the House GOP Caucus were “disappointed at the Idaho Supreme Court’s decision limiting the voice of rural voters.”

“These changes to the voter referendum/initiative process would’ve served to increase voter involvement and inclusivity, especially in the corners of the state too often forgotten by some,” Bedke said. “We believe that all the 35 legislative districts, every part of Idaho, should be included in this important process, unfortunately, the Supreme Court apparently disagrees.”

The court held that the Legislature’s power to set conditions on the initiative process has limits, and is “not a free pass to override constitutional constraints and legislate a right into non-existence, even if the Legislature believes doing so is in the people’s best interest.”

Two lawsuits were filed with the court challenging the law as unconstitutional, one from Reclaim Idaho and the Committee to Protect and Preserve the Idaho Constitution; and the second from Gilmore. Both lawsuits charged that the new law effectively nullified the people’s right to initiative and referendum, which the Idaho Constitution has guaranteed the people of Idaho since 1912.

Reclaim Idaho currently is circulating a new initiative to increase education funding in Idaho.

The committee is a group of lawyers, founded by two former Idaho attorneys general, that formed in March to protect the Idaho Constitution “from repeated attacks by the Legislature,” and announced plans to “blow the whistle on legislation that threatens the integrity of the Idaho Constitution and to use every legal avenue to oppose it,” including challenging it in court.

Former Idaho Attorney General Jim Jones, a founder of the committee, said, “This is a ruling that is going to resonate across the country.”

Jones said the ruling’s clear finding that the rights to initiative and referendum are a “fundamental right” is extremely significant. “It’s not some window dressing, like the Secretary of State and the Legislature tried to portray it as,” said Jones, who is also a former chief justice of the Idaho Supreme Court. “It is a fundamental right, and if you’re going to try to restrict it, you’ve got to have a darn good reason, a public policy reason. And neither the Secretary of State nor the Legislature gave the court one.”

“They claimed they were trying to stand up for the rights of the minority, but the court obliterated that argument,” Jones said.

Backers of SB 1110 said it would preserve the role of residents of Idaho’s sparsely populated rural areas in the process of determining which initiatives make the ballot. But all Idahoans vote on initiatives, regardless of where they live. And the 2018 Medicaid expansion initiative won support in both urban and rural districts.

The Legislature hired its own private attorneys to represent it in the case, in addition to the Idaho Attorney General’s office’s defense of the new law. They argued the Legislature could place whatever restrictions it wanted on the right to initiative, and if the people didn’t like it, they could elect different legislators.

As of July 24, lawmakers had paid nearly $180,000 in taxpayer funds to the Boise law firm of Holland & Hart for legal fees in the case.

Both Reclaim Idaho and the Committee to Protect and Preserve the Idaho Constitution were represented by Deborah Ferguson of the Boise law firm of Ferguson Durham. Gilmore acted as his own attorney.

The two groups’ lawsuit detailed a long history of legislative attempts to curtail the constitutional rights to initiative and referendum, starting when the right first was added to the Idaho Constitution by voters in the early part of the 20th century; Moeller, in the court’s 55-page decision, also recounted those developments in depth.

“This is a dispute many years in the making,” the justice wrote for the court’s majority. “In 1912, the people of Idaho amended the state Constitution to ‘reserve to themselves’ initiative and referendum powers.”

Since then, he wrote, history records “an unmistakable pattern by the Legislature of constricting the people’s initiative and referendum powers after they successfully use it.”

In 2019, Little vetoed even more far-reaching initiative restrictions passed by the Legislature that year, which sought to increase signature requirements to 10% of registered voters in 32 of Idaho’s 35 legislative districts, while cutting the signature-gathering period by two-thirds, from 18 months to six. He cited concerns about constitutionality.

Moeller noted in the court’s ruling that Little was the third Idaho governor to cite those grounds for vetoing far-reaching initiative restrictions; the first two were Govs. Moses Alexander in 1915 and John Evans in 1984.

Little, in a statement issued late Monday, said, “In considering future legislation, I encourage the Idaho Legislature to ensure that the rights secured by the Constitution remain accessible to the people while also securing that each initiative and referendum have an appropriate level of statewide support.”

Betsy Z. Russell is the Boise bureau chief and state capitol reporter for the Idaho Press and Adams Publishing Group. Follow her on Twitter at @BetsyZRussell.