Did the Idaho AG approve a 2009 ballot initiative establishing a permanent-absentee-voter list for Idaho elections?

Plain-English summary

A petitioner (Larry Grant) filed a 2009 Idaho ballot initiative to amend Idaho Code § 34-1002 (the absentee-voting statute) by adding a permanent-absentee-voter category. Under the proposal, any registered Idaho elector could submit a written application to the county clerk for permanent absentee status. The clerk would automatically send that voter an absentee ballot for every election he or she was entitled to vote in, without requiring a separate application each time. Permanent status would terminate on written request, death, disqualification, cancellation of the voter's registration, or return of an absentee ballot as undeliverable.

The Attorney General's Certificate of Review found nothing constitutionally or statutorily problematic. The proposed language was clear, the substance fit comfortably within the legislative power vested in the people through Article III, § 1 of the Idaho Constitution and recognized in Westerberg v. Andrus (1984), and laws passed by initiative are on equal footing with laws enacted by the legislature.

The Certificate's recommendations were minor drafting matters. The AG suggested the petitioner put the proposal into proper legislative format by restating Idaho Code § 34-1002 in full and showing the new language with underscoring at the place where it would be added (the constitutional drafting standard from Article III, § 18 and the practice followed in nearly every Idaho bill). This is not constitutionally required, but it would prevent any ambiguity about codification placement and would make the initiative easier for voters to understand when they considered signing the petition.

That is unusually clean for a Certificate of Review: most flag substantive constitutional issues. This one essentially gave the petitioner a green light on substance.

Currency note

This opinion was issued in 2009. 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

What is permanent absentee voter status?

A status that lets a registered voter automatically receive a mail-in absentee ballot for every election without having to submit a new application each time. Several states have adopted permanent-absentee programs; the proposed initiative would have added Idaho to that list. Permanent status would end if the voter requested removal, died, became disqualified, had their registration canceled, or had a ballot returned undeliverable.

Why was this initiative cleaner than most others the AG reviewed?

Because it addressed an ordinary policy choice within the state's traditional authority over election administration, with no obvious constitutional defect, no federal preemption issue, and no separation-of-powers complication. The proposed text was a single coherent paragraph adding one feature to an existing statute. Most ballot initiatives the AG reviewed in this period had structural problems (single-subject violations, supremacy clause issues, conflicts with existing constitutional or statutory rules) that this one did not.

What is "legislative format" and why does the AG keep recommending it?

Legislative format means presenting the proposal as it would appear in the Idaho Code, with new language underscored and deleted language struck through. Idaho Const. art. III, § 18 requires bills to set forth amended sections at full length. The Idaho Supreme Court in Golconda Lead Mines v. Neill (1960) held this applies to amendments by reference. Putting initiatives in this format prevents ambiguity about codification, makes the proposal easier for voters to understand, and avoids any potential challenge based on the constitutional drafting rule.

What did Westerberg v. Andrus decide?

In Westerberg v. Andrus (1984), the Idaho Supreme Court confirmed that laws passed by initiative are on equal footing with legislation enacted by the Idaho Legislature, and the two must comply with the same constitutional requirements. This matters because it confirms that the absentee-voting initiative, if passed, would have the same legal status as a statute enacted by the legislature.

Did this initiative pass?

The Certificate of Review only addresses legal form. Whether the petitioner gathered enough signatures, the measure made the ballot, and Idaho voters approved it would need to be confirmed against Idaho election records.

Background and statutory framework

Idaho Code § 34-1809 sends every initiative petition to the Attorney General for advisory legal review.

Idaho Code § 34-1002 governs absentee-voting applications. The proposed initiative would have added a paragraph creating permanent absentee voter status for any registered elector applying in writing.

Idaho Const. art. III, § 1 vests legislative power in the Senate, House of Representatives, and the people through the initiative process. The Idaho Supreme Court in Westerberg v. Andrus (1984) confirmed that laws passed by initiative are on equal footing with legislation enacted by the legislature.

Idaho Const. art. III, § 18 (the full-text drafting rule) and its case-law application provide the basis for the AG's standard recommendation that initiatives be drafted in proper legislative format.

Citations

Idaho Constitution: art. III, § 1.

Idaho Code: §§ 34-1002, 34-1408, 34-1809.

Idaho cases: Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664 (1984).

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C071509.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

July 15, 2009

The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE MAIL

Re: Certificate of Review - Proposed Initiative Related to Absentee Voting

Dear Secretary of State Ysursa:

An initiative petition was filed with your office on June 15, 2009. 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 to the complexity of the legal issues raised in this petition, this office's 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". The petitioners are free to "accept or reject them in whole or in part." The opinions expressed in this review are only those that may affect the legality of the initiative. This office offers no opinion with regard to the policy issues raised by the proposed initiative.

MATTERS OF SUBSTANTIVE IMPORT

The proposed initiative seeks to amend Idaho Code § 34-1002 by adding the paragraph:

Any registered elector may make written application to the county clerk for status as a permanent absentee voter. The county clerk shall notify each political subdivision of an elector's status as a permanent absentee voter pursuant to section 34-1408, Idaho Code. Each qualified registered permanent absentee voter shall automatically receive an absentee ballot for each election for which the elector is entitled to vote and need not submit a separate request for each election. Ballots received from permanent absentee voters shall be validated, processed and tabulated in the same manner as other absentee ballots. Status as a permanent absentee voter shall be terminated upon any of the following events: the written request of the voter; the death or disqualification of the voter; the cancellation of the voter's registration record; or the return of an ongoing absentee ballot as undeliverable.

Petitioners' language is clear, but it would be better if they put the initiative into legislative format. In other words, the petitioners may wish to consider restating Idaho Code § 34-1002 and show precisely how the initiative would change that section of Idaho Code. Since petitioners are proposing to add language, the added language should be shown as underscored and in the location in the statute where petitioners propose that the new language should be placed. Although petitioners are not seeking to delete any language from Idaho Code § 34-1002, deletions could be shown with strikeout, should they be proposed. Putting the proposed initiative into legislative format would eliminate the possibility (albeit remote) that the initiative, if passed, would be codified in a manner other than intended by the petitioners. Failure to do so means that, should the initiative pass, codifiers, or perhaps the Legislature, may be called upon to put the language of the proposed initiative into a legislative or code format. The underscoring, while not required constitutionally, may facilitate informed decision-making with respect to individuals who are considering whether to sign the petition. It is recommended, although not required, that an underlined draft be used for circulation and collection of signatures in order to facilitate informed decision-making, as well as to assist the codification of the initiative, should it pass.

Article III, § 1, of the Idaho Constitution vests the legislative power of the state in the Senate and House of Representatives and in the people, through the initiative process. Laws passed by initiative are on equal footing with legislation enacted by the Legislature, and the two must comply with the same constitutional requirements. Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664 (1984). As the proposed initiative is on equal footing with other legislation passed and considered by the Legislature, it does not appear that the initiative raises any significant legal issues.

CONCLUSION

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 Larry Grant by deposit in the U.S. Mail a copy of this Certificate of Review.

Sincerely,

LAWRENCE G. WASDEN
Attorney General

Analysis by:
William A. von Tagen
Deputy Attorney General