Could Idaho voters tighten state term limits through a 2002 ballot initiative without rerunning into the same constitutional problems that had hit the 1994 term-limits law?
Plain-English summary
A petitioner filed an initiative in August 2001 called the "Idaho State Term Limits Act of 2002," which would have made several changes to Idaho's existing term-limits statute (Idaho Code § 34-907, originally enacted by 1994 voter initiative). The Attorney General was required by Idaho Code § 34-1809 to issue a certificate of review pointing out problems with form, style, and substantive concerns. The certificate is advisory only; petitioners could accept or reject its recommendations.
On the substance of the changes, the AG concluded none of them raised any new constitutional issue beyond what already existed in the 1994 statute. Specifically, the initiative would have:
- added "special" elections to the list of ballots covered by the restrictions
- repealed the unconstitutional ballot-access restrictions on congressional candidates (already void under U.S. Term Limits, Inc. v. Thornton)
- narrowed the rule against switching between House and Senate seats
- repealed the ballot-access restrictions on county officials
- changed the date from which terms count toward triggering the limits
The AG flagged a much larger problem hanging over the entire scheme. In August 2000, a district court in Power County (Rudeen v. Cenarrusa) had ruled the county-official portion of the existing term-limits law unconstitutional under the Idaho Constitution. The court reasoned that the right of suffrage, including the right to run for and hold office, is a fundamental right; that the equal-footing doctrine (Luker v. Curtis; Westerberg v. Andrus) requires initiative-passed legislation to comply with the same constitutional limits as legislative-passed laws; and that an Idaho lottery initiative had been struck down on the same logic. The Rudeen court suggested term limits in Idaho should be addressed by constitutional amendment, not statute. The case was on appeal to the Idaho Supreme Court at the time of this certificate, and the AG warned that if the Idaho Supreme Court adopted the Rudeen rationale, the same logic would likely defeat the new initiative.
Currency note
This opinion was issued in 2001. 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 Idaho Supreme Court ultimately decided the Rudeen appeal, and the Idaho Legislature subsequently repealed the state term-limits statute in 2002. Both the political and legal landscape around state-level term limits in Idaho has changed substantially since this certificate was issued. Anyone researching current ballot-access rules should consult the current version of Idaho Code § 34-907 and any later judicial decisions.
Common questions
Q: Did the 2002 term-limits initiative actually go on the ballot?
A: The Rudeen rationale and subsequent legislative action overtook events; the initiative did not become law as drafted. Idaho's term-limits experiment from the mid-1990s was ultimately unwound through a combination of court rulings and legislative repeal.
Q: Why did the AG say the congressional-candidate restrictions were already void?
A: Because U.S. Term Limits, Inc. v. Thornton (1995) struck down state-imposed term limits on members of Congress as a violation of the federal Qualifications Clauses. Idaho's restrictions on congressional candidates in § 34-907(1)(a)-(b) were unenforceable from that point forward; the initiative proposed cleaning up the statute.
Q: What is the equal-footing doctrine the certificate cites?
A: It is the rule, drawn from Luker v. Curtis and applied in Westerberg v. Andrus, that legislation enacted by the people through initiative is on equal footing with legislation enacted by the Legislature, and must comply with the same constitutional limits. So if the Idaho Constitution forbids the Legislature from doing something, the voters cannot do it through initiative either; the only way to authorize it is by amending the Constitution.
Q: What was the AG's role here?
A: Idaho Code § 34-1809 gave the AG twenty working days to review proposed initiatives for substantive import and recommend revisions. The recommendations are advisory; petitioners can accept or reject them. The AG also drafts the ballot title.
Background and statutory framework
Idaho voters adopted ballot-access restrictions on multi-term incumbents in 1994 through an initiative codified at Idaho Code § 34-907. The 1994 law applied both to state legislators and to county officials, and was challenged after enactment.
The initiative review statute, Idaho Code § 34-1809, requires the AG to issue a certificate of review for every initiative petition. The advisory comments are meant to help petitioners refine the language before signature gathering, not to bind anyone.
Two strands of law shaped the certificate's analysis. First, federal preemption: under U.S. Term Limits, states cannot impose term limits on candidates for federal office. Second, the Idaho Constitution's equal-footing doctrine: an initiative cannot accomplish anything the Legislature could not.
Citations and references
Statutes: Idaho Code §§ 34-907, 34-1809.
Cases cited verbatim in the opinion: U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) (U.S. Supreme Court decision invalidating state-imposed term limits on Congress); Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943) (Idaho Supreme Court source for equal-footing doctrine); Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664 (1988) (Idaho Supreme Court applied equal-footing doctrine to invalidate lottery initiative); Rudeen v. Cenarrusa (6th Dist. Power County 2000) (district court invalidated county-level term limits).
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C082301.pdf
Original opinion text
August 23, 2001
The Honorable Pete T. Cenarrusa
Secretary of State
HAND DELIVERED
Re: Certificate of Review
Initiative Concerning State Term Limits
Dear Mr. Cenarrusa:
An initiative petition was filed with your office on August 3, 2001, called the "Idaho State Term Limits Act of 2002" (proposed initiative).
Idaho Code § 34-1809 provides in relevant part:
REVIEW OF INITIATIVE AND REFERENDUM BY ATTORNEY GENERAL . . . the attorney general . . . shall, within twenty (20) working days from receipt thereof, review the proposal for matters of substantive import and shall recommend to the petitioner such revision or alteration of the measure as may be deemed necessary and appropriate. The recommendations of the attorney general shall be advisory only and the petitioner may accept or reject them in whole or in part. The attorney general shall issue a certificate of review to the secretary of state certifying that he has reviewed the measure for form and style . . . .
Pursuant to this duty, this office has reviewed the proposed initiative and prepared the following advisory comments.
This office offers no opinion with regard to the policy issues addressed by the proposed initiative. 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 proposed initiative, 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 TITLES
Following the filing of the proposed initiative and pursuant to Idaho Code § 34-1809, this 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. While this office prepares the titles, if petitioners would like to propose language with these standards in mind, we would recommend that they do so and their proposed language will be considered.
MATTERS OF SUBSTANTIVE IMPORT
The proposed initiative would make a number of changes to Idaho Code § 34-907. Idaho Code § 34-907 contains the ballot access restrictions for statewide elected officials and state legislators that were adopted by voter initiative in 1994. None of these changes set forth in the proposed initiative raises any significant statutory or constitutional concern beyond those raised by existing law.
- Addition of the Term "Special"
Currently, Idaho Code § 34-907(1) states that the ballot access restrictions apply for all multi-term incumbents planning to appear on the "primary or general election ballot." The proposed initiative would include ballots prepared for "special" elections in the list of ballots covered by the ballot access restrictions in Idaho Code § 34-907(1).
- Repeal of Ballot Access Restrictions for Congressional Candidates
Currently, Idaho Code §§ 34-907(1)(a) and (b) set out ballot access restrictions for multi-term congressional incumbents. Ballot access restrictions for congressional candidates were held to be unconstitutional in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). The initiative would remove the unconstitutional language from Idaho Code § 34-907.
- Restriction on Switching from House to Senate and Vice Versa in Consecutive Elections
Idaho Code § 34-907(1)(d) prohibits an individual from appearing on the ballot as a candidate for either the Idaho State Senate (Senate) or House of Representatives (House) when that individual has served as "a state legislator, representing any district within the state, including all House seats within the same district, during eight (8) or more of the previous fifteen (15) years." However, the initial language in Idaho Code § 34-907(1) limits this restriction to service in the "same office." Therefore, under the current version of Idaho Code § 34-907, a person who is prohibited from appearing on the ballot as a candidate for the State Senate, for example, could appear on the ballot as a candidate for the House of Representatives. The same would be true for a multi-term member of the House appearing on the ballot as a candidate for State Senate.
The initiative would narrow the ability of a multi-term incumbent in one house to appear on the ballot as a candidate for a position in the other house. A state legislator could not appear on the ballot as a candidate for the State Senate or the State House of Representatives once he or she has served as a "member of the state legislature during twelve (12) or more of the previous fifteen (15) years."
- Repeal of Ballot Access Restrictions for County Officials
Currently, Idaho Code §§ 34-907(1)(e) and (f) contain ballot access restrictions for multi-term incumbent candidates for county commission and other county elected positions. The initiative would repeal these restrictions.
- Change of Effect Date for Terms Counted Toward Ballot Access Restrictions
Section 5 of the 1994 initiative enacting the current version of Idaho Code § 34-907 stated that the effective date of the initiative was January 1, 1995. It also stated that, "[s]ervice prior to January 1, 1995 shall not be counted for purpose of" calculating when the ballot access restrictions go into effect. Legislative terms begin on December 1 following the general election. Idaho Code § 34-907. Therefore, the term that resulted from the 1994 general election does not count toward the ballot access restriction calculations for state legislators only.
Section 3 of the proposed initiative would change the date from which terms are calculated to determine when ballot access restrictions begin. The initiative includes all "terms of office [that] began or begin at any time after December 1, 1994" in the calculation of terms leading toward ballot access restrictions. It is not clear what the drafters intend by this change. It does not cover the state legislative terms that were the subject of the 1994 general election because those terms began on December 1, 1994, not after December 1, 1994. The drafters should clarify what they hope to accomplish with the language in section 3 that differs from the existing effective date of Idaho Code § 34-907.
- Other Matters for Consideration
In a memorandum decision dated August 23, 2000, the District Court for the Sixth Judicial District invalidated Idaho Code §§ 34-907(1)(e) and (f), which imposed term limits on county elected positions. Rudeen v. Cenarrusa, Memorandum Decision and Order, Case No. CV00-00012 (6th Dist., Power County, August 23, 2000). The rationale adopted by the district court in Rudeen included the following rulings: (1) the right of suffrage is a fundamental right set forth in the Idaho Constitution; and (2) the right of suffrage includes the right to vote, access to the ballot to run for public office, and to hold public office. The court also relied upon the "equal footing" line of authority, traced back to the Idaho Supreme Court's decision in Luker v. Curtis, 64 Idaho 703, 136 P.2d 978 (1943). The equal footing doctrine holds that legislation passed through the initiative process is "on an equal footing with legislation enacted by the state and must comply with the same constitutional requirements as legislation enacted by the Idaho legislature." Westerberg v. Andrus, 114 Idaho 401, 405, 757 P.2d 664, 668 (1988). In other words, if the legislature would be constitutionally prohibited from passing a law, then the voters would also be prohibited from passing the same law through the initiative process.
In the Westerberg case, the Idaho Supreme Court struck down a lottery law passed by the voters through the initiative process, explaining that the legislature was constitutionally prohibited from establishing lotteries. Therefore, the court reasoned, a lottery could only be established by amending the Idaho Constitution. See id. ("[W]e conclude that [the Idaho Constitution] prohibits the establishment of a lottery through any legislative process, including the initiative.") Indeed, the voters of Idaho subsequently passed a constitutional amendment establishing a state lottery.
Similar to the Idaho Supreme Court in Westerberg, the district court in Rudeen ruled that because the right of suffrage is a fundamental right under the Idaho Constitution, the term limits initiative is unconstitutional. The district court further advised that, "[t]he term limits issue in Idaho ought to be determined permanently and definitely (if at all) by political debate and election on a constitutional amendment." Memorandum Decision at 37 (emphasis added).
The rationale applied by the district court in Rudeen resulted in a decision which invalidated term limits on county elected officials. Yet, the term limits law applies to county and state elected officials, including legislators and executive branch officials. The incomplete nature of the ruling is entirely due to the coincidental status of the named plaintiffs in the lawsuit, of the twenty-two (22) named plaintiffs, none of them were state elected officials. However, if the legal validity of the district court's rationale is accepted, it would seem that the decision would apply equally to any statutorily imposed term limit restrictions on any elected official in Idaho.
The Rudeen decision is currently on appeal to the Idaho Supreme Court. For the reasons set forth above, the court's decision may have direct application to this proposed initiative.
Sincerely,
ALAN G. LANCE
Attorney General
Analysis by:
WM. A. VON TAGEN
Deputy Attorney General