Could Idaho voters change the Fish and Game Commission to elected office and limit the vote to people holding a hunting or fishing license?

Plain-English summary

Jim Pratt’s March 1999 initiative proposed changing the Fish and Game Commission from seven district representatives to four commissioners, two elected at large from each congressional district. Only qualified electors with a valid hunting or fishing license could vote for them.

The AG identified five concerns. The proposal did not clearly show how it would amend Idaho Code § 36-102(b) through (e); it called subsection (e) modified even though the proposed wording matched the existing text. A four-member commission could have tied votes, so the petitioner might wish to retain an odd number. The license-only voting rule posed the most serious legal problem. It would require an otherwise qualified voter to pay a fee to vote for a public official. The AG noted that the license requirement was not explicitly a poll tax, but cited the Twenty-Fourth Amendment and Idaho and federal decisions requiring close scrutiny of voting restrictions. The initiative supplied no findings explaining a compelling state interest, and the AG concluded that a court would likely hold the fee condition unconstitutional.

The initiative also omitted election procedures. It gave the Department of Fish and Game authority to set election dates even though Idaho Code § 34-106 restricted when elections could occur; the AG said any intended departure from Title 34 election rules should be stated. Finally, the proposal did not say how the elections would be funded. The certificate suggested a funding mechanism or a designated department account.

Currency note

This opinion was issued in 1999. 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.

Common questions

Why did the hunting- or fishing-license rule concern the AG?

It made payment of a license fee a condition for an otherwise qualified elector to vote for a public official. The opinion said the license requirement was not explicitly a poll tax, then cited the Twenty-Fourth Amendment and Johnson v. Lewiston Orchard Irr. Dist., which quoted Kramer v. Union Free School Dist. on careful scrutiny of voting restrictions. The AG said such a restriction had to be necessary to promote a compelling state interest and predicted a court would likely reject this fee condition.

Did the AG object to a four-member commission?

The AG said reducing the commission from seven members to four raised no legal issue by itself. It might, however, produce tie votes. The petitioner was invited to consider keeping an odd number of commissioners.

What election details were missing?

The initiative did not provide a procedure for electing commissioners or a way to pay for the elections. It allowed the Fish and Game Department to designate election times and places, while Idaho Code § 34-106 limited election dates. The AG suggested clarifying any intended departure from Title 34 election rules and specifying a funding source.

Background and statutory framework

At the time of the certificate, Idaho Code § 36-102 provided for seven commissioners, each representing a district. The initiative proposed two commissioners elected at large from each congressional district and limited the electorate to hunting- or fishing-license holders. The AG’s recommendations were advisory under Idaho Code § 34-1809.

Citations

• U.S. Const. amend. XXIV
• Idaho Code §§ 34-106, 34-1809, 36-102(b) through (e)
• Johnson v. Lewiston Orchard Irr. Dist., 99 Idaho 501, 584 P.2d 646 (1978)
• Kramer v. Union Free School Dist., 395 U.S. 621 (1969)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C033199.pdf

Original opinion text

March 31, 1999
The Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED

Re: Certificate of Review
Initiative Regarding Election of Fish and Game Commissioners

Dear Mr. Cenarrusa:

An initiative petition was filed with your office on March 19, 1999. 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 timeframe 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

The proposed initiative purports to amend Idaho Code §§ 36-102(b) through (e) to change the way fish and game commissioners are selected. Currently, there are seven fish and game commissioners. Idaho Code § 36-102(b). Each of these commissioners represents an individual district. Idaho Code § 36-102(c). Idaho Code § 36-102(c) establishes the term that each commissioner serves. If the proposed initiative were enacted into law, there would be four fish and game commissioners, two elected at large from each congressional district. The only people eligible to vote in fish and game commissioner elections would be those electors who also possess a valid hunting or fishing license.

As an initial matter, the initiative should be formatted to clearly indicate how it is supposed to amend the current language of Idaho Code § 36-102. Instead of stating that the language of Idaho Code § 36-102 should be "modified," the initiative should specifically repeal Idaho Code §§ 36-102(b) through (d) and replace the repealed language with the language in the initiative. Also, the initiative should not state that the current language contained in Idaho Code § 36-102(e) is "modified" by the initiative when the version of Idaho Code § 36-102(e) found in the initiative is identical to the existing language in section 36-102(e).

Next, the proposed initiative reduces the number of fish and game commissioners from seven (7) to four (4). While this change does not raise any legal issue, the petitioner may wish to consider retaining an odd number of commissioners to eliminate the possibility of tie votes.

Third, the initiative's limitation on those who may vote for fish and game commission positions poses a serious constitutional concern. The Twenty-Fourth Amendment to the United States Constitution states:

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

(Emphasis added.) In essence, the proposed initiative would require otherwise qualified electors to pay the fee for a hunting or fishing license in order to vote for fish and game commissioners. While the licensure requirement for voting is not explicitly a poll tax, the initiative does have the effect of conditioning the right to vote upon the payment of a fee. Even if the licensure requirement is not deemed a poll tax, a reviewing court may rely on the line of case authority prohibiting the placement of restrictions, such as property ownership, on the right to vote. In Johnson v. Lewiston Orchard Irr. Dist., 99 Idaho 501, 584 P.2d 646 (1978), the Idaho Supreme Court ruled that restrictions on the right to vote must be "carefully and meticulously scrutinized." Johnson, 99 Idaho at 503, quoting Kramer v. Union Free School Dist., 395 U.S. 621, 626-27 (1969). Such a restriction must be "necessary to promote a compelling state interest in order to survive constitutional attack." Id. Since the proposed initiative contains no findings that would explain the "compelling state interest" to a reviewing court, the proposed initiative will be very vulnerable to challenge under this standard. Indeed, this office concludes that a reviewing court is likely to rule that conditioning the ability to vote for a public official on the payment of a fee is unconstitutional.

Fourth, the proposed initiative does not include any procedure to be used in conducting the election of fish and game commissioners. Title 34 contains comprehensive rules and restrictions governing elections. Taking just one example, the proposed initiative states that the "Idaho Department of Fish and Game shall designate the time and place for the election of commissioners," while Idaho Code § 34-106 establishes strict limits on the times during the year when elections can be held. If it is the intent of the proposed initiative to deviate from the general election guidelines contained in title 34, that intention should be specifically stated in the text of the initiative.

Finally, a statewide election carries a significant cost. The proposed initiative does not address the question of how the fish and game commissioner elections are to be funded. The proposed initiative should either contain a funding mechanism or designate a particular account within the Department of Fish and Game that will bear the cost of commissioner elections.

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 Jim Pratt 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