The specifics are as new and current as Covid-19 but, really, we’ve been here before.
The news is about the school funding and tax initiative being proposed by the group Reclaim Idaho, which launched its effort to gather petition signatures - which are needed to obtain a line on the ballot - last October. Signature-gathering was rolling along, and might or might not have succeeded under the usual rules, when the pandemic intervened, and shut down a lot of person-to-person communications around the state.
In some ways, the impact of shutdown orders on petition signatures for an initiative proposal may be among the smaller effects of the new way or where we are. But it’s significant nonetheless, and a way forward actually is suggested in the recent rulings of federal Judge B. Lynn Winmill.
Back up for a moment to the whole matter of initiatives in Idaho. The Idaho State Constitution was amended in 1912 to allow for voter-driven initiatives as a method of bypassing the legislature if it proved unwilling to act as the voters want. The provision specifically said voters “reserve to themselves the power to propose laws … independent of the legislature.” So the ability of citizens to do this is explicitly part of the state governing policy in Idaho.
The legislature, and a number of other state officials, haven’t always liked that. Starting from a base of setting reasonable requirements for petition signatures within a scheduled period of time - to ensure substantial voter support for the proposal actually does exist, and to keep the ballot from being flooded with initiatives - legislators periodically have tried to make the rules for ballot qualification so difficult that the right reserved to the people in the state constitution would become meaningless. For the last decade the requirements have been so strict that only an extremely well-organized and well-supported effort could manage the task (which the recent Medicaid expansion effort did). Another legislative effort to tighten the requirements still further - to all but eliminate the initiative in Idaho - only narrowly failed last year.
That’s the context for the conflict this year, in which state governance may in another way effectively block the right of the people to make their own laws.
The difference in this case is that the state action wasn’t undertaken with the intent of doing that. The pandemic shutdown orders by Governor Brad Little were issued for health reasons. But the petition circulators, who under state law had to obtain a certain number of signatures during a period when in-person contact was sharply limited by state order, were caught up in it.
What to do?
Since the state’s official (and constitutional) policy is to allow people to pursue initiative efforts, the answer logically seems to involve some flexibility in the specifics of the rules, maintaining them enough to continue to ensure some support for the proposal, but easing them enough to give backers a reasonable shot at ballot status.
When state officials declined to accommodate that, Reclaim Idaho sued in federal court. Winmill proposed one of two options: the state could simply put the initiatives on the ballot, or allow the signature gathering to be done online, over a period of 48 days.
That second option, because it seems so similar to how a whole lot of governmental and even commercial activity is being handled during the pandemic, feels like a no-brainer. We’re being encouraged to conduct all sorts of activity, wherever realistic, online; why not petition signatures, at least during the pandemic period? Where’s the great harm in allowing that?
The state, of course, said it plans to appeal. Reclaim Idaho is, in the meantime, pursuing its online signature-gathering effort. We’ll see what happens when the case hits the 9th Circuit Court of Appeals.
But the core of this debate is the same as the core of the legislative debate on the structure of initiatives last year:
Is the state government of Idaho going to uphold the rights of the voters as enumerated in the state constitution, or not?