This is a statement that five former Idaho Attorneys General submitted to all members of the Idaho House of Representatives prior to their April 7 vote on Senate Bill 1110. The bill was enacted into law, but held to be unconstitutional by the Idaho Supreme Court on August 23, 2021.
Honorable members of the Idaho House of Representatives:
We had the privilege and honor of serving this hallowed body for 28 years since 1971. In doing so, we developed a deep respect for the legislative process, as exercised primarily by the Legislature but also by the people through the initiative and referendum. The initiative and referendum serve as an important part of the systems of checks and balances written into the Idaho Constitution by those who hold all political power in our dear State—the people.
Article I, section 2 of the Idaho Constitution declares: “All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary.” In 1889, the people approved the Idaho Constitution, which delegated a portion of their power–the legislative power–to the Legislature.
However, 23 years later the people decided to take back some of the delegated legislative power out of concern that legislators might ignore or violate their wishes. A populist movement was sweeping the country, largely fueled by farmers who were being oppressed by railroads, oil monopolies, and other powerful special interests. The oppressors were being aided by legislatures that they essentially controlled.
In order to get around unresponsive legislatures beholden to the special interests, the people adopted two constitutional amendments in 1912. The initiative, which insured the right of the people to enact laws, was approved by 71.92%, and the referendum, which could affirm or repeal laws, got a 76.39% vote.
Senate Bill 1110 would largely nullify the legislative power the people reserved for their protection in 1912. The legislation would make it virtually impossible to qualify an initiative or referendum for the ballot. Its oppressive signature requirements would likely have prevented the Medicaid expansion initiative, and most of the previous initiatives and referenda, from coming to a public vote.
The people of Idaho have not misused the initiative/referendum process. Although the process was put into the Constitution in 1912, the referendum did not come into play until 1936, when the voters killed a 2% sales tax bill passed by the Legislature. The initiative was not used until 1938, when the voters established the Idaho Fish and Game Commission by a vote of 75.98%. It has been sparingly used since then. But, even if it had arguably been abused by the voters, it is their constitutional power.
When the Legislature failed to limit dredge mining in riverbeds and require restoration of dredged areas, the people approved an initiative in 1954 to get the job done. It passed by a whopping 85.28%. It is doubtful that many nowadays would regard the people’s decision to have been misguided.
The initiative has been used when there is legislative paralysis on tax issues. The voters approved an initiative in 1978, limiting property tax increases to 1% of property value. In 1982, the people approved a residential property tax exemption of 50% or $50,000.
This should not be a partisan issue. The initiative and referendum have been used over the years by members of both parties and others with varied interests. These instruments of people power serve as a safety valve and check on power when the interests of the Legislature fail to align with those of the voting public.
Placing unreasonable restrictions on the initiative/referendum process should be looked upon with skepticism. After all, the Idaho Constitution clearly specifies that the people have the unfettered right to “alter, reform or abolish” the government “whenever they may deem it necessary.” How can the people possibly exercise that awesome power if the Legislature cuts off practically every reasonable means of doing so?
While it is true that Article III, Section 1, gives the Legislature the authority to set the procedural rules for conducting an initiative or referendum, there is no basis for making those rules so strict that these measures of people power are nullified. The Constitution clearly states that the people reserve the right to “initiate any legislation” and to reject “any act” passed by the Legislature. Procedural rules designed to frustrate those rights are contrary to the Constitution.
Passage of Senate Bill 1110 will likely be just the first chapter in a divisive fight. Parties concerned about the sanctity of the rule of law in Idaho have vowed to challenge the legislation with both an initiative and a referendum. In addition, legal actions are contemplated in both federal and state court to contest the constitutionality of the bill.
The courts may well agree that Senate Bill 1110 is an unconstitutional restriction on the people’s legislative power. We urge that you put a stop to the struggle over the right of the people to have their say in the legislative process by voting down SB 1110.
Tony Park, 1971-1975
Wayne Kidwell, 1975-1979
Dave Leroy, 1979-1983
Jim Jones, 1983-1991
Al Lance, 1995-2003