Gov. Brad Little

Gov. Brad Little

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BOISE — Idaho Gov. Brad Little on Tuesday vetoed legislation that sought to prevent signature-gathering for an Idaho medical marijuana initiative among Idahoans patronizing legal Oregon pot shops, after an Idaho Attorney General’s opinion found the bill as amended likely unconstitutional.

“I am primarily concerned with the constitutionality and fairness of this bill,” Little wrote in his veto message.

The bill, SB 1150a, initially tried to allow signatures on initiative petitions only when the signer was physically inside the state of Idaho — regardless of whether the signer was an Idaho resident and registered voter who just happened to be outside the state. But it ran into trouble in the House because members there pointed out that it was removing initiative petition-signing rights from deployed Idaho military members stationed overseas or out of state.

Rep. Brent Crane, R-Nampa, the bill’s lead sponsor, pulled it just as it was poised to be killed on the floor of the House, and instead had it amended to add narrow new exemptions for deployed military members or Idahoans on out-of-state religious missions. It then passed both houses and went to the governor. But Deputy Attorney General Robert Berry wrote in the opinion that under the bill as amended, “Voters who are otherwise ‘qualified electors’ or ‘legal voters’ and who could vote absentee, would be denied the ability to participate in the initiative process.”

That would violate the Equal Protection Clause of the U.S. Constitution, Berry found, by denying a right guaranteed since 1912 in the Idaho Constitution to some Idahoans when they’re out of state, but not others, for no apparent reason.

Sen. Patti Anne Lodge, R-Huston, chairwoman of the Senate State Affairs Committee, where the bill first was introduced, said there’ll be no attempt to override the governor’s veto. The Senate has adjourned for the year, though the House remains in recess, a move that’s raised other legal and constitutional questions about the status of the legislative session.

“We tried to make it just as simple as it possibly could be,” Lodge told the Idaho Press. “And that’s just the way the cookie crumbles. Sometimes you get it right, and sometimes you don’t.”

Lodge said she was “absolutely not” going to ask for the Senate to be reconvened. “It’s not that important a bill,” she said. “It’s not anything that has to do with appropriations or anything that we have to do to operate the state.”

Little’s veto came not long before an approaching five-day deadline was set to run out, after which the bill would have become law without his signature if he took no action.

For the past two years, the House and Senate have tried to remain in session for an extra five days after they’ve finished with all bills, awaiting any possible vetoes from the governor, in case they might want to attempt an override. Overriding a veto takes a two-thirds vote in each house; no vetoes have been overridden this year.

Brent Crane file 6-23-20

Rep. Brent Crane, R-Nampa, speaks on the House floor in Boise.

“I don’t like that five-day thing,” Lodge said. “I think if the governor vetoes a piece of legislation, he vetoes a piece of legislation. You come back next year with a better piece of legislation. I think this waiting around five days is just a waste of taxpayer dollars.”

Lodge, an 11th-term senator, added, “I’ve never seen a piece of legislation that hasn’t come back the next year better. I just look at that as part of the process and the deliberation, of what the Legislature’s supposed to be.”

Lodge said she agreed with the Attorney General’s opinion that the bill as amended is unconstitutional. “I didn’t have that information in front of me when we drafted the bill,” she said. “It was held in the House for a long period of time, and then they decided to amend it when they were hearing it on the floor.”

Lodge said the best legislating happens well before the final, rushed days of the legislative session, when there’s little time for public input and vetting of legislative proposals.

“That’s how we supposedly try to get things halfway right,” she said.

Patti Anne Lodge Senate floor by Brian April 2021

Sen. Patti Anne Lodge, R-Huston, speaks on the floor of the Idaho Senate.

SB 1150a first passed the Senate on March 5, with Lodge as its floor sponsor. It wasn’t reported out of committee in the House until more than a month later, on April 14, and then the House amended it on May 4. The amended bill passed the House 35-25 on May 5, and won final Senate passage as amended on May 12, the final day of legislative action this year. It was delivered to the governor after 7 p.m. that evening.

“SB 1150a provides that signatures gathered outside of Idaho may only be collected from military members and missionaries,” the governor wrote in his veto letter. “This is discriminatory and unfair to other qualified voters who wish to participate in Idaho’s initiative and referendum process but find themselves temporarily out of the state when the opportunity arises.”

SB 1150a was the last bill from this year’s legislative left on the governor’s desk awaiting action. Other than two vetoes of emergency powers bills in mid-April, both of which were later replaced by watered-down versions that were then signed into law, Little issued no other vetoes this year.

On April 17, he signed SB 1110 into law, making far-reaching changes in Idaho’s initiative process by requiring collection of signatures from 6% of the registered voters in each of Idaho’s 35 legislative districts for an initiative or referendum measure to qualify for the ballot, compared to the 18 of 35 districts required under previous law. Opponents contended it was an impossible requirement, effectively erasing the state’s constitutional right to initiative and referendum; that’s now being challenged in two lawsuits pending before the Idaho Supreme Court.

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.

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