Eye on Boise: New initiative could frustrate proposed new initiative law

When voters overturned the “Luna Laws” on school reform in 2012, it was the first time Idaho voters had taken such a step since 1936. But a similar move is afoot in reaction to the Legislature’s maneuver this year to make it much, much harder to qualify an Idaho voter initiative or referendum for the ballot, right on the heels of the historic Medicaid expansion initiative’s strong passage in November’s general election.

“I do not believe that our Idaho state Legislature is actually representing the people,” said Joseph Evans, a data engineer from Meridian who started work on such a referendum after hearing about SB 1159, which he calls “an end-run around the will of the people.” The controversial measure, which would give Idaho the toughest process to qualify a voter-initiated ballot measure of any state, squeaked through the Senate on Friday, after much debate, on a narrow 18-17 vote and now is pending in the House.

Evans at first thought he’d just craft a referendum to reject the new law; he collected the required 20 signatures of registered voters and filed the paperwork on March 11. But then the bill went to the Senate’s amending order, where it underwent several mostly technical changes.

“You can’t repeal something that doesn’t exist yet,” Evans said, and “you can’t rewrite a law that’s changed after you’ve submitted the paperwork.”

“So we are on the third option,” he said. That’s an initiative to repeal and replace the section of code about qualifying initiatives and referenda for the ballot. Evans plans to file his petition Monday morning.

But there’s one more twist: SB 1159, sponsored by Sen. C. Scott Grow, R-Eagle, contains an emergency clause, making it effective as soon as it’s passed both houses and been signed into law by the governor. Without an emergency clause, new Idaho laws take effect the following July 1. In the past, when Idaho’s changed its initiative laws, pending petitions were grandfathered in under the old laws.

Evans said he’s been in touch with Reclaim Idaho, the group that pushed for the Medicaid expansion initiative; Idahoans for a Fair Wage, which filed a proposed initiative to raise the minimum wage on March 11; and the Idaho Cannabis Coalition, which filed a medical marijuana initiative, also on March 11. “They’ve been told by their lawyers that as long as the filing date pre-dates the bill being signed by the governor and going into law, it will be grandfathered in,” he said, and will fall under Idaho’s current requirements to qualify a ballot measure – not SB 1159’s new, stricter rules.

Those include raising the number of signatures required from 6 percent of registered voters in 18 of Idaho’s 35 legislative districts to 10 percent in 32 of Idaho’s 35 legislative districts; cutting the time allowed for signature-gathering from 18 months to six months; and imposing other requirements, including a single-subject rule and a requirement for a fiscal impact statement to be developed by the state Division of Financial Management.

Idaho Secretary of State Lawerence Denney had a different interpretation, and told the medical marijuana group last week that they’d be subject to SB 1159’s requirements retroactively, because of the emergency clause.

On Friday afternoon, Idaho Deputy Attorney General Brian Kane, in a three-page legal analysis issued in response to a request from Denney, wrote that the petitioners now have an “inchoate,” or pending, right to pursue their measures, rather than a “vested” right, because they haven’t yet received the required Certificate of Review from the Attorney General’s office or the subsequent formal ballot title. Only once both those are issued can signatures be gathered to place the measures on the ballot.

Kane concluded that new initiatives, even if they’re filed before the new law takes effect, are subject to it anyway if they haven’t “met the statutory procedural requirements for circulation.”

Attorneys for the initiative-backing groups concluded otherwise. “So you’re looking at two distinctly different opinions,” Evans said. “Ultimately it’s going to depend on a judge.”

“It’s going to be interesting to see how it all plays out once the suits are filed, because suits will be filed,” Evans said.

Because Idaho law gives the attorney general up to 20 days to issue a Certificate of Review – after which petitioners have up to 15 working days to request ballot titles, which then must be issued within 10 working days – the attorney general’s opinion paradoxically outlines a process by which the attorneys for the state would be in a position to frustrate the aims of those suing them, simply by taking their time processing the requests.

“It’s a conflict of interest,” Evans said.

Evans said his new initiative proposal would return the state law to “something close to” what it is now, but will include “some modifications, as the debate has covered – there were several good additions that Grow has added in. But the restrictions are overly prohibitive.”

That could mean the initiative would include items like Grow’s proposed fiscal note and single-subject requirements.

John Belville, lead petitioner for the Idaho Cannabis Coalition, confirmed that the group’s lawyers reached different conclusions than the Attorney General’s office did.

“Why do they make it so difficult?” asked Belville, 77, a retired counselor who suffers from peripheral neuropathy and other conditions that require him to take prescription painkillers. He said while on a visit to his son in Oregon, he discovered that when he tried legal marijuana there, “the pain went away without taking a pill, and to me that was a miracle.”

Belville noted that this is the fifth time a medical marijuana initiative has been proposed for the Idaho ballot; none of the previous efforts qualified. “It’s hard enough as it is to get these things – you’ve got to have all your i’s dotted and your t’s crossed,” he said. “It’s a real bugaboo just the way it is.”