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

Petitioner Jim Pratt filed an initiative in March 1999 that would have rewritten Idaho Code § 36-102(b)-(e) to make the Fish and Game Commission an elected body. Instead of seven commissioners (one per district), there would be four, two elected at large from each congressional district. The franchise would be limited: only electors who also held a valid Idaho hunting or fishing license could vote in those elections.

The AG's certificate identified five problems. First, drafting: the initiative said it "modified" Idaho Code § 36-102, but the cleaner approach is to repeal and replace specific subsections, especially since the version of subsection (e) in the initiative was identical to current law and so didn't need modifying at all. Second, the move from seven commissioners to four created the possibility of tie votes; an odd number would avoid that. Third, and most seriously, the license-only voting requirement raised constitutional alarm bells. Tying the right to vote to payment of a hunting or fishing license fee functioned as a kind of poll tax (Twenty-Fourth Amendment territory) and at minimum was a property-or-fee-type voting restriction subject to strict scrutiny under Kramer v. Union Free School Dist. and Johnson v. Lewiston Orchard Irr. Dist. The state would need a "compelling state interest" to defend it, and the initiative's text contained no findings that could support that. The AG concluded a reviewing court would likely strike the restriction down. Fourth, the initiative did not specify how the commissioner elections would be conducted; existing Title 34 election rules don't anticipate Fish and Game Department running its own elections, and Idaho Code § 34-106 limits when statewide elections can be held. Fifth, statewide elections are expensive, and the initiative contained no funding mechanism.

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.

The Fish and Game Commission remains an appointed body in Idaho. The voting-rights doctrines cited (Twenty-Fourth Amendment, Kramer/Johnson strict scrutiny of fee-based franchise restrictions) remain good law. Anyone advising on a current ballot-access or franchise-restriction question should consult current Idaho and federal cases.

Common questions

Q: Why does requiring a hunting license to vote raise a poll-tax problem?
A: The Twenty-Fourth Amendment bars conditioning the right to vote in federal elections on payment of "any poll tax or other tax." Even if a hunting license isn't technically a "tax," the U.S. Supreme Court (Harper v. Virginia Board of Elections) extended the same principle through the Equal Protection Clause to all elections. Kramer v. Union Free School Dist. then held that voting restrictions must survive strict scrutiny, meaning the state has to show a compelling interest in the restriction.

Q: What about other "interested party only" elections, like irrigation district votes?
A: Idaho's irrigation district statute conditioning the vote on land ownership has been repeatedly upheld (Salyer Land Co. v. Tulare Lake Basin; Ball v. James). Those decisions rest on the narrow special-purpose nature of the entity. The Fish and Game Commission, as a statewide regulator of an important resource that affects all residents, is harder to fit in that exception.

Q: Could the initiative have been redrafted?
A: Yes. Removing the license requirement, specifying election mechanics under Title 34, providing a funding source, and using an odd number of commissioners would have addressed most concerns. The constitutional problem with the license requirement was the headline issue.

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's Fish and Game Commission (Idaho Code § 36-102) consists of seven commissioners, one from each commission region, appointed by the Governor with Senate consent. The Commission is the policymaking body for fish and wildlife management; the Department of Fish and Game is the implementing agency.

Voting rights doctrine in Idaho is shaped by Johnson v. Lewiston Orchard Irr. Dist. (applying Kramer's strict scrutiny to property-qualification voting restrictions) and the federal Twenty-Fourth Amendment and Equal Protection Clause cases.

Citations and references

Constitutional provisions: U.S. Const. amend. XXIV.

Statutes: Idaho Code §§ 34-106, 34-1809, 36-102(b)-(e).

Cases: 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