Could Idaho voters use the initiative process to undo the 1997 Legislature's tightening of initiative procedures?

Plain-English summary

Petitioner Dennis Mansfield filed an initiative in June 1997 designed to undo most of HB 265, the Legislature's tightening of Idaho's initiative process that Governor Batt had signed into law on March 20, 1997. HB 265 had added time limits for signature gathering, a geographical proportionality requirement (signatures from a proportional number of counties), new signature-removal procedures, signature-gatherer disclosure rules, and judicial review provisions. The proposed initiative would have repealed most of this, while keeping HB 265's reduction of the total signature requirement to six percent of qualified electors at the last general election.

The AG's certificate addressed only the threshold legal question: whether the electorate could use the initiative process to amend the initiative process itself. The answer was yes. The Idaho Constitution at art. 3, § 1 vests the initiative power in the people. The Idaho Supreme Court in Luker v. Curtis (1943) held that the initiative is "on equal footing" with acts of the Legislature, and the equal-footing principle was reaffirmed in Westerberg v. Andrus (1988). Under that rule, the voters can amend the initiative-procedure statutes in the same way and to the same extent that the Legislature can. Nothing in the structure of Idaho's initiative power forbids voters from undoing legislative tightening of the rules.

The certificate did not address the substantive merits or constitutionality of HB 265 itself. It also did not flag any drafting concerns specific to this initiative.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Idaho's initiative procedure has been amended multiple times since 1997. HB 265's geographic proportionality requirement was the subject of subsequent litigation. Anyone advising on current Idaho initiative procedures should consult the current versions of Idaho Code title 34, chapter 18, and any later case law.

Common questions

Q: What was HB 265 trying to do?
A: HB 265 was the Idaho Legislature's reaction to a wave of successful initiative campaigns in the mid-1990s. The bill imposed new time limits on signature gathering, required signatures to come from a proportional number of counties (so that initiatives couldn't qualify by signature gathering only in Boise and a few cities), tightened signature-gatherer disclosure rules, and added a judicial review mechanism. Critics saw it as raising barriers to popular lawmaking; supporters saw it as ensuring that initiatives reflect statewide rather than urban-only support.

Q: What is the equal-footing rule?
A: The principle, articulated in Luker v. Curtis and reaffirmed in Westerberg v. Andrus, that initiative-passed legislation has the same force and effect as legislative-passed legislation. So voters can do anything by initiative that the Legislature could do by statute, and vice versa. The rule cuts both ways: voters cannot exceed the Legislature's constitutional authority, and the Legislature cannot make initiative legislation impossible.

Q: Could the Legislature have just re-enacted HB 265 after the initiative passed?
A: In theory yes, since the Legislature retains plenary authority over the initiative process subject only to the constitutional grant of initiative power at art. 3, § 1. But voter-passed legislation is generally politically harder to overturn quickly, and the equal-footing principle would mean any re-enactment was on equal terms with the initiative. Some states bar legislative repeal of voter-initiated laws for a fixed period; Idaho does not.

Q: What was the AG's role here?
A: Idaho Code § 34-1809 requires the AG to review every initiative within twenty working days for matters of substantive import. The recommendations are advisory.

Background and statutory framework

Idaho Const. art. 3, § 1 vests the initiative power in the people: "legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, initiate any desired legislation." So the Legislature regulates the manner of initiative procedure, but cannot extinguish the initiative power.

Initiative procedure statutes sit in Idaho Code title 34, chapter 18. Before HB 265 the rules were comparatively permissive; HB 265 added the framework described above.

Luker v. Curtis (1943) is the canonical Idaho Supreme Court statement of the equal-footing principle. Westerberg v. Andrus (1988) reaffirmed it in striking down a voter-initiated lottery as inconsistent with the Idaho Constitution.

Citations and references

Constitutional provisions: Idaho Const. art. 3, § 1.

Statutes: Idaho Code §§ 34-1801, 34-1801A, 34-1802, 34-1803B, 34-1805, 34-1809, 34-1814A, 34-1815.

Cases: Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943); Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664 (1988).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C070997.pdf

Original opinion text

July 9, 1997
The Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED

Re: Certificate of Review
Initiative Regarding Process Governing Initiatives

Dear Mr. Cenarrusa:

An initiative petition was filed with your office on June 24, 1997, concerning the process for enacting an initiative under Idaho law. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments. It must be stressed that, given the strict statutory time frame in which this office must respond and the complexity of the legal issues raised in this petition, our review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only," and the petitioners are free to "accept or reject them in whole or in part."

BALLOT TITLE

Following the filing of the proposed initiative, our office will prepare short and long ballot titles. The ballot titles should impartially and succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure.

MATTERS OF SUBSTANTIVE IMPORT

During the 1997 legislative session, the legislature passed House Bill 265. As amended, House Bill 265 established certain procedures for the gathering of signatures for the purpose of placing an initiative on the ballot. House Bill 265 was signed into law by Governor Batt on March 20, 1997. If it is successful, the proposed initiative would repeal the majority of the changes to Idaho's initiative law contained in House Bill 265.

Section 1: would repeal House Bill 265's redesignation of Idaho Code § 34-1801 as Idaho Code § 34-1801A.

Section 2: would repeal the statement of legislative intent and legislative purpose, codified as Idaho Code § 34-1801, contained in House Bill 265.

Section 3: would repeal all of the new time limits for gathering signatures that House Bill 265 adds to Idaho Code § 34-1802.

Section 4: would repeal House Bill 265's new provisions governing the removal of signatures from an initiative petition (codified as Idaho Code § 34-1803B).

Section 5: would amend Idaho Code § 34-1805, the geographical proportionality requirement for signature collection created by House Bill 265. Under section 5, Idaho Code § 34-1805 would retain the reduction of required signatures, six percent of the qualified electors at the time of the last general election, originally contained in House Bill 265, but would drop the requirement that a proportional number of signatures be gathered in twenty-two counties.

Section 6: would repeal the judicial review provisions added to Idaho Code § 34-1809 by House Bill 265.

Section 7: would repeal the new requirements for initiative petition signature gatherers established by House Bill 265 (codified as Idaho Code § 34-1814A).

Section 8: would repeal certain disclosure requirements placed on initiative petition signature gatherers by House Bill 265 (codified as Idaho Code § 34-1815).

Section 9: designates January 1, 1999, as the effective date for the changes it makes to title 34, chapter 18, Idaho Code.

Section 10: contains a severability clause.

The only significant legal issue raised by the proposed initiative is whether art. 3, sec. 1 of the Idaho Constitution allows the electorate to alter the process for enacting an initiative through the initiative process. In Luker v. Curtis, 64 Idaho 703, 706, 136 P.2d 978 (1943), the Idaho Supreme Court compared the power of initiative to the power of legislation:

This power of legislation, reclaimed by the people through the medium of the amendment to the constitution, did not give any more force or effect to initiative legislation than to legislative acts but placed them on equal footing. The power to thus legislate is derived from the same source and, when exercised through one method of legislation, it is asserted, is just as binding and efficient as if accomplished by the other method; that the legislative will and result is as validly consummated the one way as the other.

(Emphasis added.) The supreme court reiterated its adherence to the "equal footing" rule for initiative and legislative acts in Westerberg v. Andrus, 114 Idaho 401, 404, 757 P.2d 664 (1988). It is the opinion of this office that the supreme court's "equal footing" rule would most likely be judicially interpreted to permit the electorate to amend the process for enacting an initiative in the same manner, and to the same extent, that the legislature is permitted to do so.

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style and matters of substantive import and that the recommendations set forth above have been communicated to petitioner Dennis Mansfield by deposit in the U.S. Mail of a copy of this certificate of review.

Sincerely,
ALAN G. LANCE
Attorney General

Analysis by:
MATTHEW J. MCKEOWN
Deputy Attorney General