Unconstitutional legislation seeks to subvert Idaho initiative rights, yet again

By Jim Jones
JJ Commontater

Jim JonesIdaho legislators sought to undermine the constitutional right of Idahoans to run initiatives by enacting a 2021 law making it virtually impossible to get the required signatures. The Idaho Supreme Court struck the law down, based on its determination that the law violated the Idaho Constitution. The Court said that the initiative is a fundamental constitutional right and that laws to restrict it will be strictly scrutinized. In other words, there must be a compelling justification for any restriction.

The Legislature is at it again with another bill that will almost certainly be struck down for violating the Idaho Constitution. The new attack on initiative rights takes a subtler form. House Bill 652 gives initiative opponents a powerful tool to sabotage an initiative after it has been submitted for verification of signatures. The bill would allow enough signatures to be disqualified to sink the initiative at a time when it is too late to get more signatures.

Existing law allows initiative signers to remove their signature from a petition “at any time after presentation of the petition to the county clerk but prior to verification of the signature.” HB 652 makes a dramatic change, allowing a signature to be removed for up to five months after signature gathering has concluded. The bill says that no signatures may be submitted after March 31. County clerks have until June 30 to verify the signatures and must submit them to the Secretary of State four months before the election. After the Secretary of State receives the petitions, he “shall provide a public review period of not less than sixty (60) days.” Signatures can be removed throughout the public review period under HB 652. The upshot is that the bill allows a signature to be removed for a period of up to five months from the March 31 deadline for presenting petitions to the county clerk.

Signatures on a petition have to be witnessed in person and verified under oath by the signature gatherer. However, removals can be accomplished with just a simple emailed statement. Signature removals should require in-person verification by the signer or a statement made under oath. The bill’s lax removal provision is an invitation to fraudulent or coerced removals.

Would anyone in Idaho engage in such skulduggery? Not wanting to point fingers, but Dorothy Moon, the head of the extreme branch of Idaho’s GOP, reportedly issued a news letter last December telling how petition signers could remove their signatures.

Initiative opponents would have a hard time justifying Idaho’s current removal law in a court challenge. The HB 652 removal provision is much worse and will almost certainly be found unconstitutional, should it be enacted into law. Only 4 states have signature-removal laws, so there are not many court decisions on the issue. A 2010 Florida Supreme Court decision is instructive. That Court struck down a law that allowed signatures to be removed after the signature-gathering deadline had already passed–just like HB 652.

The Court said, “initiative proponents will likely receive no notice with regard to how many of their gathered, signed petition forms have been revoked until it is too late to gather, submit, and verify additional signatures.” It concluded that the “politically charged counter-petition revocation campaigns created by these provisions in operation would essentially eviscerate and render meaningless the citizen-initiative process.”

It is hard to see how the unfair situation created by HB 652 could withstand a constitutional challenge in Idaho. Two groups, Reclaim Idaho and the Committee to Protect and Preserve the Idaho Constitution, succeeded in having the 2021 legislation struck down. They promise a court challenge if HB 652 is enacted. That challenge will likely seek to throw out the entire signature-removal law. As in the 2021 initiative lawsuit, the challengers are certain to seek attorney fees from the state. They got $152,000 in that lawsuit and will likely get a similar amount for this one.

Jim Jones is a Vietnam combat veteran who served eight years as Idaho Attorney General (1983-1991) and 12 years as a Justice on the Idaho Supreme Court (2005-2017).