Will Idaho Republicans shred voters' initiative powers?
Senate Joint Resolution 101 would overturn a state supreme court ruling that protected the electorate's powers of direct democracy—and make initiatives near-impossible
In the last several election cycles, Idaho voters have used their state’s initiative process to adopt policies that the state legislature refused to. In 2018, Reclaim Idaho, a grassroots voter organization, initiated a statute that proposed to expand Medicaid under the Affordable Care Act. Voters adopted the statute in a landslide—and since then, 145,000 Idahoans have enrolled in Medicaid. And last year, as a response to devastating cuts to public education, Reclaim Idaho proposed a statute that would have increased taxes on the wealthy to increase education funding by several hundred million dollars. After the statute was placed on the November ballot, the Idaho Legislature adopted a modified version of the proposal itself, and the organizers withdrew the statute.
But today, Idaho voters’ power to propose statutes of their own creation is under attack. The State Senate is currently considering a constitutional amendment that would erect new hurdles for placing initiated statutes on the ballot. The state constitution currently sets no requirement for how many signatures are needed for an initiated measure to appear on the ballot, but state law requires signatures from 6% of the state’s registered voters, including 6% of voters from at least 18 of the 35 legislative districts.1 Senate Joint Resolution 101 proposes to raise the bar by requiring at least 6% of voters from all 35 legislative districts—and constitutionalizes this new requirement.
For Idahoans, this proposal has a Groundhog Day-type feel to it. In 2021, the state legislature enacted a statute that did the exact same thing—raised the geographic distribution requirement to 6% of voters in all legislative districts—only for it to be struck down as unconstitutional by the Idaho Supreme Court.
Reclaim Idaho challenged the constitutionality of the heightened threshold in state court. They relied on Article III, Section 1, of the state constitution, which “reserve[s]” to the people “the power to propose laws, and enact the same at the polls independent of the legislature.” This power is a “legislative” power under the state constitution, in that it is located in Article III (“Legislative Department”) and that it divvies up the “legislative power” between the elected legislature and the people themselves. (Most state constitutions with initiative and referendum provisions organize the powers this way, too.)
The Idaho Supreme Court held that section 1 of Article III established the powers of initiative and referendum as “fundamental rights” under the state constitution—and as such, “any effort to limit those rights is subject to strict scrutiny.” Idaho’s version of strict scrutiny is virtually identical to the strict-scrutiny test articulated by the U.S. Supreme Court, and it provides that “a law which infringes on a fundamental right will be upheld only where the State can demonstrate the law is necessary to promote a compelling state interest.”
When it came to the constitutionality of the 2021 law, the Court concluded that neither of the State’s ostensible interests—“prevent[ing] the minority from being ‘trammeled by the majority,’” and “ensuring that initiatives and referenda demonstrate a threshold level of support in every legislative district”—were compelling. The Court reviewed the recent history of how the legislature had restricted voters’ initiative powers, and observed that there was “an unmistakable pattern by the legislature of constricting the people’s initiative and referendum powers after they successfully use it.” It concluded that the distribution requirement was “a dramatic check on the ballot qualification process” when “a thorough check [was] already built into the process: that every qualifying initiative or referenda is subject to a statewide, majority vote in which every qualified elector has an equal say.”
Even assuming that these were compelling interests, however, the Court further held that the proposal wasn’t “narrowly tailored” to advance those interests. It characterized the new requirement as “placing an absolute veto power into the hands of any one legislative district in the state” and “effectively nullify[ing] a constitutional mechanism reserved by the people to effect policy.” Accordingly, the Court struck down the distribution requirement as unconstitutional under the state constitution.
The choice by Reclaim Idaho to litigate these claims in state court, rather than in federal court, was ultimately a wise one—though federal courts are generally willing to uphold similar distribution requirements, most notably in Colorado and Nebraska, state courts have sometimes proven friendlier to similar claims. Miriam Seifter and Jessica Bulman-Pozen have argued that constitutional provisions like Idaho’s are evidence of a “commitment to popular sovereignty,” which many state courts have vindicated.
It’s in this context that S.J.R. No. 101 needs to be viewed. The Idaho Supreme Court has given an incredibly broad reading to the electorate’s powers of direct democracy—stunning for many reasons, not least of which is that this is a Republican-dominated court that is generally quite conservative. The amendment to the constitution would effectively overturn the Court’s ruling, turning the electorate’s legislative powers—which the Court found to be a “fundamental right,” and which are practically co-equal with the legislature’s powers—into something that the legislature can essentially eliminate.
And if this power is gone, what’s left? Idaho voters favoring policies like Medicaid expansion or greater support for public education have little recourse other than through the initiative process. Though majorities of Idahoans clearly supported expanding Medicaid, they might be unable to elect a legislative majority that agrees with them. During the current legislative session, the state legislature is considering repealing the Medicaid expansion that voters approved in 2018—even though doing so will cost the state more money. If the legislature decides to undo the state’s Medicaid expansion, and Governor Brad Little signs that repeal into effect, voters could use their powers of direct democracy to halt the repeal.
But that ability is obviously conditioned on having reasonable access to those powers. If the legislature places the proposed constitutional amendment onto the ballot and Idahoans ratify it, they’d be stripping themselves of one of their core checks on the legislature’s power. The costs of traversing the state to gather signatures from every one of the 35 legislative districts, some of which are quite large, would be much greater—and might functionally end the initiative process.
Of course, the Idaho Legislature isn’t alone in proposing changes like this. Republican-led legislatures from across the country, frustrated at the use of the initiative process to adopt progressive policies, are making similar moves to cut off voter power. Last year, the South Dakota legislature attempted to raise the voter-approval requirement for certain types of constitutional amendments in advance of a November vote on Medicaid expansion. Following the success of similar measures in Arizona and Arkansas, the legislatures there proposed similar restrictions. The Ohio Legislature looks likely to propose requiring a 60% vote of the electorate to approve constitutional amendments—likely because of the fact that voter-initiated amendments remain one of the last available outlets for voters in the face of entrenched legislative gerrymanders.
But in Idaho, the situation is far more dire. Idahoans don’t have the power to propose constitutional amendments, only statutes. Accordingly, if they embrace the legislature’s proposed constitutional amendment and constrain their power to initiate statutes, they’re not just raising the bar for the existing initiative process—they’re potentially locking themselves in to a new, and permanent, reality.
So as the Idaho Legislature continues debating S.J.R. 101, and as Idahoans of all political ideologies learn more about the amendment and what it would mean, it should prompt some serious questions about whether it’s desirable to strip themselves—possibly permanently—of one of their greatest powers in their democracy.
The codified version of the law still reflects the 2021 statutory amendment to it, which the Idaho Supreme Court held unconstitutional in Reclaim Idaho v. Denney.