BOISE — The Idaho Supreme Court held a lively session of oral arguments Tuesday in two lawsuits challenging the state’s restrictive new law on how voter initiatives qualify for the ballot; justices have taken the case under advisement, and will issue their written decision in the coming weeks.
The five Idaho Supreme Court justices frequently interrupted both sides with questions, using up much of the time they were allotted to present their arguments and all of the time that was initially to be left for rebuttal. A common theme of many of the justices’ questions: Who has pre-eminent power under the Idaho Constitution, the Legislature or the people of Idaho?
Attorney Deborah Ferguson told the court, “The pre-eminent one would be the people, the source from which all power flows.” Ferguson represents Reclaim Idaho, the citizens group that successfully pushed the Medicaid expansion initiative in 2018, and the Committee to Preserve and Protect the Idaho Constitution.
When Justice John Stegner asked Deputy Attorney General Megan Larrondo the same question, she said, “The people are fundamentally the source from which the government springs, however they have adopted a Constitution that sets the parameters for government, and that is the framework, that is the parameters that we are working within today.”
Larrondo said the groups that sued are “seeking basically to jettison” that framework, “because they would rather not be regulated.”
Ferguson told the court, “The heart of this case is the severe burden SB 1110 requires with no true purpose. The Legislature’s purpose is only a pretext.”
She said under the “guise” of protecting the voice of rural voters in the process, lawmakers expanded the requirements for initiatives or referenda to qualify for the Idaho ballot from 6% of signatures of registered voters in 18 of Idaho’s 35 legislative districts, to 6% in each and every one of 35 districts. That, she said, makes qualifying a measure for the ballot in Idaho “an impossibility.”
“The narrative that this is somehow necessary to protect rural districts just isn’t borne out,” Ferguson said. “There has not been a single initiative that has not received support from … rural districts.”
She said in the past 15 years, 90% of proposed initiatives have failed to make the ballot. Now, she said, with the new law, none will succeed.
Larrondo and attorney Bill Myers of the Boise law firm Holland & Hart, representing the state and the Legislature, respectively, argued that there’s no proof the law made it impossible for measures to qualify for the ballot, and said the Idaho Constitution specifically grants the Legislature the ability to prescribe the “conditions” and “manner” by which the rights to initiative and referendum may be exercised by Idaho citizens.
“The majority of states do not have any initiative or referendum process at all, so Idaho is in a minority,” Myers told the court. He argued that the question of whether conditions on the right to ballot measures go too far is a “political” question that’s up to lawmakers, not the courts.
Stegner asked Myers, “Let’s assume 25 years hence from now, and no initiative or referendum has made it on the ballot. Would the question still be non-judiciable at that point? Or could we say that because it’s impossible for the citizenry to utilize the initiative and referendum processes, that we would then find it justiciable?”
Myers responded, “I think it would be non-justiciable,” meaning he believes the courts still couldn’t weigh in. But he said that doesn’t mean citizens would be left with “no remedy.”
“That remedy is in the form of the election of the Legislature every two years,” Myers said. “And if the Legislature made it so difficult that no petition could get onto the ballot, then the citizens could rise up and say, ‘We’re going to elect new legislators who are going to get us that right.’”
Ferguson said, “Here the argument we’ve seen in the Legislature’s briefs is that the court doesn’t have the right to review this, that they can do whatever they want, they have literally no boundaries with this. … If they wanted to turn around and say, ‘Every registered voter has to sign a petition to qualify for the ballot,’ under the argument they’ve advanced, what would stop them?”
She said that would nullify a right guaranteed to citizens in the Idaho Constitution. “Certainly the Legislature doesn’t have unfettered power to destroy the citizens’ constitutional right,” she said.
Perhaps the toughest questioning of the day from the justices came as Larrondo presented the state’s case. Justice Greg Moeller asked Larrondo if she was arguing “that the Legislature does a better job of protecting minority rights … than the people can.”
“That’s inherent in the idea of the checks and balances of our republican system of government,” Larrondo said, “that there has to be a check on the majority.”
Moeller told Larrondo, “Our Legislature passes laws all the time that don’t have support in every part of the state, but we’re saying that if the people want to propose legislation, that has to have support in every part of the state. That doesn’t sound like an equal footing to me.”
Larrondo responded, “Your honor, the process is not on an equal footing. There’s different constitutional provisions that govern representative democracy vs. direct democracy.”
However, legal briefs submitted by both sides cited a 1983 Idaho Supreme Court case, Westerberg v. Andrus, that held that initiatives stand on “equal footing” with laws passed by the Legislature.
“Initiative legislation is on an equal footing with legislation enacted by the state and must comply with the same constitutional requirements as legislation enacted by the Idaho Legislature,” the court held in that case.
Ferguson wrote in legal arguments submitted to the court, “The Idaho Constitution has direct democracy bred deep into its bones. The people are paramount.” Quoting from the Idaho Constitution, Article I, Section 2, she wrote, “All political power is inherent in and starts with 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.”
Chief Justice Richard Bevan questioned Larrondo’s interpretation of the phrase “independent of the Legislature” in the Idaho Constitution’s clause granting initiative power to the people. She argued that was only referring to the subject matter of initiatives, that they didn’t have to be subjects on which the Legislature has acted, as opposed to the constitutional provision about referendum rights, which doesn’t contain that “independent” phrase. The right to referendum means the people can propose ballot measures to repeal laws passed by the Legislature, as Idahoans did in 2012 to repeal the controversial “Luna Laws” on education reform.
“Once you read that sentence, it’s talking more about power than subject matter,” Bevan said. “It says the people reserve the power. All power is inherent in the people. They’re reserving power, not subject matter.”
Larrondo argued, “There’s no fundamental right at issue here. … There’s no positive right to a process that is separate and apart from the Legislature.”
Moeller asked her, “What does 35 (districts) accomplish that 18 didn’t accomplish?”
Larrondo said, “One must get all 35 of 35. That’s the only way of ensuring that all of Idaho is included.”
Attorney Michael Gilmore, a retired deputy Idaho attorney general, filed a separate lawsuit as a citizen contesting SB 1110; he argued that the Idaho Constitution specifically grants two fundamental rights to the people: The power to propose legislation, through initiative and referendum; and the power to enact it. The two lawsuits were combined for purposes of the oral arguments on Tuesday.
Reclaim Idaho is currently circulating a new initiative to increase education funding in Idaho; it’s also preparing a proposed initiative to roll Idaho’s initiative and referendum laws back to their pre-2012 levels, removing all geographic distribution requirements, that it plans to press if the legal challenge doesn’t succeed.
The Committee to Protect and Preserve the Idaho Constitution is preparing a referendum measure to overturn SB 1110. However, referenda can only be proposed in the 60 days after the legislative session in which the bill passed has adjourned sine die, or for the year; that date is in question this year as the Senate has adjourned sine die, but the House has only recessed. Some attorneys have argued that means both houses have adjourned sine die, while others have argued that both are still technically in session, just at recess; the Idaho Constitution doesn’t permit one house to adjourn for more than three days without concurrence from the other.In arguments submitted to the court, Ferguson wrote, “The unprecedented failure of the chambers to agree on whether the 66th Session of the Idaho Legislature has completed its business adds greatly to the confusion and urgency of an already uncertain situation.”