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The power to propose laws

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Article III, Section 1 of the Idaho Constitution says, “The people reserve to themselves the power to propose laws, and enact the same at the polls independent of the legislature.” This is called the initiative.

The constitution also says that initiatives can be made “under such conditions and in such manner” as the state legislature provides. That means the legislature sets the specific rules allowing the initiative process to work.

This is an important point to consider as the Idaho Legislature considers what to do about Senate Bill 1159, which would change requirements for voters to qualify a proposed initiative for the ballot. (As this is written, the bill is under consideration at the legislature.) The change would make qualification vastly more difficult than it is now, which already is … very difficult.

Let’s start from this: The rules of the game set up by the legislature should – given the policy set out by the constitution – assist the ability of the people to use the initiative process.

That can reasonably involve a process for screening initiative ideas, so that people will be voting on measures that have significant, as opposed to scarcely any, support. (If you allowed anything in, you could wind up with scores of garbage issues on the ballot.) The usual method is to require a bunch of people to call for ballot status by petition, to show the backing is significant. The Medicaid expansion ballot issue of last year, and – to pick out an older instance – the One Percent property tax initiative of four decades ago clearly did have significant and broad support, evident from broad and highly successful petition campaigns. And of initiatives that do make the ballot, a significant number do pass. (In the past three decades, five initiatives that reached the ballot passed, and eight have failed.)

The bar back in 1978 was high, but the bar in 2018 was far higher. The Medicaid expansion measure needed more than 56,000 qualified signatures – actually more than that, to guard against questionable signatures thrown out – and additionally, apportioned in the right way among more than half (18) of the state’s legislative districts. This requirement, enacted in 2013, was so rough it discouraged anyone from seriously pushing an initiative at all in 2014 or 2016.

When the backers did get the Medicaid expansion measure on the ballot, with little room to spare, what it showed was this: Support for the measure was high. Ultimately, more than 60 percent of the voters supported Proposition 2. You might point out that another initiative, Proposition 1 (related to horse racing) also made the ballot, and it failed. But it did receive 46.2 percent of the vote – a respectable show of support, certainly enough to declare significant (even if not enough) support among the public.

If a measure has to be so overwhelmingly popular that it must have landslide voter approval even before appearing on the ballot, then the constitutional intent that they be allowed to engage in lawmaking would clearly be undermined.

This new bill would require much higher signature requirements, in not just a majority but in nearly every legislative district in the state, and collected in only a third of the time which was available for the Medicaid expansion measure. If you can’t exactly say it would wipe out the voter initiative in Idaho, you’d have to say it comes very close – which is to say, that it aims to reverse what the constitution clearly says.

If this new bill does become law, don’t be surprised if the Idaho Supreme Court throws it out as a clear violation of the state constitution.

A correction on last week’s column: A quote in last week’s column (on the marriage age) was attributed to a local Democratic official named Chris Nash. It should be attributed to Colin Nash, who was substituting in the Legislature for Rep. John McCrostie, D-Boise (District 16).
 

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