Did the Idaho AG identify any legal problems with a proposed ballot initiative that would have repealed the new geographic-distribution signature requirement (SB 1110) for Idaho ballot initiatives?

Subject

The Idaho AG's Certificate of Review under Idaho Code § 34-1809 of a proposed citizen initiative that would have repealed Idaho Code § 34-1805 (signature collection requirements) and replaced it with a version eliminating the geographic distribution requirement, while keeping the 6% total signature threshold.

Plain-English summary

This Certificate of Review came in response to a citizen-driven push-back against Senate Bill 1110, which Governor Brad Little signed into law on April 17, 2021. Before SB 1110, Idaho initiative petitioners had to collect signatures from 6% of qualified electors in at least 18 legislative districts. SB 1110 raised the bar to all 35 legislative districts. Twelve days later, on April 29, 2021, a citizen filed a proposed counter-initiative that would erase the geographic distribution requirement entirely while keeping the 6% statewide signature requirement. The AG had to issue a Certificate of Review of the proposal under § 34-1809.

The AG's analysis spanned three substantive issues:

1. Can the people initiate changes to ballot-access rules? Yes, likely. Article III, § 1 of the Idaho Constitution gives the Legislature the power to set the "conditions and manner" for the initiative process. But Idaho law lets the people initiate on subjects the Legislature could legislate (City of Boise v. Keep the Commandments Coal., 2006). And the Idaho Supreme Court in Rudeen v. Cenarrusa (2001) upheld a citizen-initiated term-limits law as a valid exercise of constitutional authority that named only the Legislature. The mirror conclusion: the people can initiate procedural changes to § 34-1805.

2. Does a 6% statewide signature requirement without geographic distribution survive Idaho constitutional scrutiny? Likely yes. The Idaho Supreme Court in Dredge Mining Control-Yes!, Inc. v. Cenarrusa (1968) upheld a 10% total signature requirement (without any geographic distribution) under the Idaho Constitution's "reasonable and workable" standard. A 6% threshold is less burdensome than 10%, so the Idaho Constitutional analysis follows.

3. Does it survive federal constitutional scrutiny? Likely yes on Equal Protection grounds. The Ninth Circuit in Idaho Coalition United for Bears v. Cenarrusa (2003) struck down Idaho's earlier county-based geographic distribution because counties had unequal populations, but specifically endorsed legislative-district-based distribution because legislative districts are equipopulous. So the citizen initiative removing distribution entirely would be MORE permissive than what ICUB approved, and the existing constitutional doctrine doesn't prohibit it. First Amendment review under Angle v. Miller (9th Cir. 2012) and Meyer v. Grant (1988) similarly tolerates 6% threshold absent severe burden.

The AG's only drafting concern. The proposed title of "The Idaho Initiative Act" implied the proposal applied only to initiatives, but the actual proposed text amended provisions covering both initiatives and referendums. The AG suggested updating the title for clarity. Beyond that, the AG saw no legal-form defects.

The AG explicitly declined to opine on the policy merits of the change or the State's potential litigation costs from any constitutional challenge.

The 2022 outcome: the proposed initiative did not qualify for the ballot.

What this means for you

Ballot initiative petitioners (Idaho)

Three takeaways:

1. The 35-district SB 1110 requirement is the law. SB 1110 took effect April 17, 2021, and is still on the books. Initiative drives in Idaho must collect signatures from 6% of qualified electors in each of all 35 legislative districts, plus the 6% statewide minimum. This is a substantial hurdle: a campaign that succeeds in 30 districts but falls short in 5 doesn't qualify, no matter how many signatures it has.
2. Constitutional challenges are available. The Ninth Circuit's reasoning in ICUB approved equipopulous legislative districts as a constitutionally permissible distribution mechanism, but did not bless any specific number. SB 1110's "all 35 districts" requirement could be challenged as a "severe burden" under Meyer / Angle, especially given Idaho's geographic diversity. (And, in fact, Reclaim Idaho v. Denney did challenge it, with the Idaho Supreme Court eventually striking down portions of SB 1110 in August 2021. The AG's Certificate of Review was issued before that decision.)
3. The petitioner's counter-initiative was an alternative path. Rather than (or in addition to) suing, a petitioner could have used the initiative process itself to roll back SB 1110's restrictions. That path requires meeting the (post-SB 1110) signature threshold. It also requires getting through the AG's Certificate of Review (this opinion is the AG's blessing on the form).

Idaho voters

This Certificate of Review documents a moment of legal pushback against the Idaho Legislature's tightening of initiative rules. The proposed initiative would have made the ballot easier to access by removing the geographic distribution requirement. It did not qualify; SB 1110 was challenged in court instead, and the Idaho Supreme Court partially struck SB 1110 down in Reclaim Idaho v. Denney (Idaho 2021). Voters interested in this area should track current Idaho Code § 34-1805 since 2021 court decisions and subsequent legislative responses.

Constitutional and First Amendment lawyers

The Certificate provides a useful summary of Idaho's evolving signature-distribution case law:
- Dredge Mining Control-Yes! (1968): 10% total signature requirement upheld as "reasonable and workable" under Idaho Constitution.
- ICUB (D. Idaho 2001, aff'd 9th Cir. 2003): county-based distribution struck down as Equal Protection violation; legislative-district-based distribution (equipopulous) approved.
- Isbelle v. Denney (D. Idaho 2020): challenge to legislative-district distribution held not redressable.
- SB 1110 (2021): increased to all 35 districts, subsequently challenged in Reclaim Idaho.

The First Amendment severe-burden test (Meyer; Angle) coexists with Equal Protection scrutiny. Future challenges should address both.

Idaho legislators considering ballot-access changes

The Certificate flags two constitutional vectors any future amendment to § 34-1805 must navigate:
1. Equal Protection (no vote dilution; equipopulous distribution acceptable).
2. First Amendment (no severe burden on core political speech, including the ability to gather signatures and discuss the initiative statewide).

Increasing the geographic threshold to all 35 districts may have crossed both lines, depending on how the courts assess severe burden in light of campaign data.

Common questions

Q: Did the proposed initiative make it to the Idaho ballot?

No. The 2022 effort to repeal SB 1110 by initiative did not qualify. The challenge to SB 1110 instead succeeded in the Idaho Supreme Court via Reclaim Idaho v. Denney (2021), which held that significant portions of SB 1110 violated the right to initiative under Idaho's Constitution.

Q: What was SB 1110?

A 2021 Idaho law that required initiative proponents to collect signatures from 6% of qualified electors in each of all 35 legislative districts, replacing the prior requirement of 18 districts. SB 1110 was signed by Governor Little on April 17, 2021, and contained an emergency clause making it immediately effective.

Q: What's the Idaho Supreme Court's "reasonable and workable" test?

The standard from Dredge Mining Control-Yes!, Inc. v. Cenarrusa (1968) for evaluating "conditions" and "manner" the Legislature has imposed on the initiative process. The conditions must be "reasonable and workable." Restrictions that prevent reasonably diligent proponents from qualifying don't pass the test.

Q: What about ICUB?

Idaho Coalition United for Bears v. Cenarrusa, 234 F. Supp. 2d 1159 (D. Idaho 2001), aff'd, 342 F.3d 1073 (9th Cir. 2003). The case struck down Idaho's then-existing county-based geographic distribution requirement under the Equal Protection Clause because counties had unequal populations and the requirement gave preferential weight to rural votes. The Ninth Circuit endorsed legislative-district-based distribution as an acceptable alternative.

Q: What's a Certificate of Review?

Idaho Code § 34-1809 requires the AG to review proposed initiative petitions for "form, style, and matters of substantive import." The Certificate is advisory only. Petitioners can accept or reject the AG's recommendations.

Background and statutory framework

Idaho's initiative process is in title 34, chapter 18, of the Idaho Code, with the constitutional foundation in Article III, § 1 of the Idaho Constitution (ratified 1912; amended 1980). The right is not self-operating; the Legislature establishes "conditions and manner" by which it's exercised (Westerberg v. Andrus, 1988).

Idaho Code § 34-1805 sets the signature requirements:
- 1933: 10% of electors statewide (from when chapter 18 was first enacted).
- 1997: reduced to 6% statewide, plus geographic distribution from 22 counties (later challenged in ICUB).
- 2007: geographic distribution removed entirely; 6% statewide only.
- 2013: geographic distribution reinstated based on equipopulous legislative districts (18 districts at 6%).
- 2021 (SB 1110): geographic distribution increased to all 35 legislative districts.

The proposed initiative this Certificate addresses would have rolled § 34-1805 back to a 6%-statewide-only requirement (eliminating the 18-district (now 35-district) component).

Constitutional scrutiny applies on two fronts:
- Idaho Constitution, art. III, § 1 (right to initiative; "conditions and manner"; Dredge's reasonable-and-workable test).
- U.S. Constitution: First Amendment (severe burden on core political speech under Meyer v. Grant, 1988); Fourteenth Amendment Equal Protection (vote-dilution analysis from ICUB; Angle v. Miller, 9th Cir. 2012).

The Certificate also discussed the federal Isbelle v. Denney (D. Idaho 2020), which dismissed a challenge to the 18-district requirement as not redressable. Isbelle is now of historical interest given the subsequent SB 1110 enactment and Reclaim Idaho v. Denney (Idaho 2021) decision.

Citations

• Idaho Const. art. III, § 1 (initiative and referendum)
• Idaho Const. art. VI, § 4 (suffrage qualifications)
• Idaho Code § 34-1805 (signature requirements)
• Idaho Code § 34-1809 (Certificate of Review)
• Idaho Code Title 34, ch. 18 (initiative process)
• SB 1110, 66th Idaho Leg., 1st Reg. Sess. (2021) (35-district requirement)
• HB 265, 54th Idaho Leg., 1st Reg. Sess. (1997) (6% + 22-county distribution)
• HB 214, 59th Idaho Leg., 1st Reg. Sess. (2007) (geographic distribution removed)
• SB 1108, 62nd Idaho Leg., 1st Reg. Sess. (2013) (18-legislative-district distribution)
• Dredge Mining Control-Yes!, Inc. v. Cenarrusa, 92 Idaho 480, 445 P.2d 655 (1968)
• Westerberg v. Andrus, 114 Idaho 401, 757 P.2d 664 (1988)
• Idaho Coalition United for Bears v. Cenarrusa, 234 F. Supp. 2d 1159 (D. Idaho 2001), aff'd, 342 F.3d 1073 (9th Cir. 2003)
• Rudeen v. Cenarrusa, 136 Idaho 560, 38 P.3d 598 (2001)
• Isbelle v. Denney, 2020 WL 2841886 (D. Idaho 2020)
• Johnson v. Diefendorf, 56 Idaho 620, 57 P.2d 1068 (1936)
• Angle v. Miller, 673 F.3d 1122 (9th Cir. 2012)
• Meyer v. Grant, 486 U.S. 414 (1988)
• Burdick v. Takushi, 504 U.S. 428 (1992)
• City of Boise v. Keep the Commandments Coal., 143 Idaho 254, 141 P.3d 1123 (2006)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2021/05/Certificate_04292021.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF TH E ATTORNEY GENERAL
LAWRENC E G. WASD EN

April 29, 2021

The Honorable Lawerence Denney
Idaho Secretary of State
Statehouse
VIA HAND DELIVERY
Re:

Certificate of Review
Proposed Initiative Repealing Idaho Code § 34-1805 and Enacting New
Idaho Code § 34-1805

Dear Secretary of State Denney:
An initiative petition was filed on April 7, 2021, proposing to repeal and replace
Idaho Code section 34-1805 with a new Idaho Code section 34-1805. The proposed
initiative completely eliminates the existing geographic signature requirement, but keeps
the current 6% total signature requirement.
Pursuant to Idaho Code section 34-1809, this office has reviewed the petition and
prepared the following advisory comments. Given the strict statutory timeframe within
which this office must review the 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."
The petitioner is free to accept or reject them in whole or in part. This office offers no
opinion with regard to the policy issues raised by the proposed initiative or the potential
revenue impact to the State budget from likely litigation over the initiative's validity.

BALLOT TITLE
Following the filing of the proposed initiative, if petitioner decides to proceed with
sponsorship, 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 our office prepares titles
for the initiative, petitioner may submit proposed titles for consideration. Any proposed
titles should be consistent with the above standard.

P.O. Box 83720, Boise, Idaho 83720-001 O
Telephon e: (208) 334-2400, FAX: (208) 854-8071
Located at 700 W. Jefferson Street, Suite 21O

Secretary of State Denney
April 29, 2021
Page 2

MATTER OF FORM

Section 1 of the proposed initiative contains a descriptive statement that identifies
the initiative as "The Idaho Initiative Act." 1 Section 2 repeals Idaho Code section 341805, extant at the time of vote on the proposed measure. Section 3 amends title 34,
chapter 18, Idaho Code, by enacting a new Idaho Code section 34-1805. Section 4
provides that should the proposed initiative pass at the November 8, 2022 General
Election, then it will enter into full force and effect on or after January 1, 2023.
SUMMARY OF INITIATIVE AND MATTERS OF SUBSTANTIVE IMPORT

I.

Summary of Proposed Initiative.

The proposed initiative is discrete. It amends title 34, chapter 18, Idaho Code, by
repealing Idaho Code section 34-1805 and replacing it with a revised Idaho Code section
34-1805.
Title 34, chapter 18, Idaho Code, establishes the processes by which the people
may enact initiatives and conduct referendums in Idaho. Section 34-1805 identifies the
total number of required signatures for final filing and consideration. Before April 17,
2021, initiative proponents were required to collect a certain percentage of signatures,
equaling or greater than 6% of the qualified electors at the time of the last general election
from at least 18 legislative districts. If those requirements were met, then the total number
of signatures collected must have been equal to or greater than 6% of the qualified
electors of the state of Idaho at the time of the last general election.
On April 17, 2021, Governor Little signed Senate Bill 1110, 66th Legislature, 1st
Regular Session ("S.B. 111 0"), into law. The bill contained an emergency clause and it
became law that same date. Based upon S.B. 111 O's enactment, Idaho Code section
34-1805 now requires initiative proponents to collect a certain percentage of signatures,
equaling at least 6% of the qualified electors at the time of the last general election from
all 35 legislative districts in the state of Idaho.
The proposed initiative eliminates the geographic signature requirement. It
decreases the number of legislative districts from which signatures of legal voters must
be obtained in order to qualify a measure for the ballot from 35 districts to zero. The
proposed initiative does not alter the total number of signatures that must be collected,
which must be equal to or greater than 6% of the qualified electors of the state of Idaho
at the time of the last general election.

1 While not included in the title, the proposed initiative would also apply to referendums.

Secretary of State Denney
April 29, 2021
Page 3

II.

Matters of Substantive Import.
A.

The Legal Standards Governing the Imposition of Conditions on the
Enactment of Initiatives and Referendums Stem from the Idaho and U.S.
Constitutions.

The proposed initiative measure would impose a lesser burden on the legal
framework for how the people may enact initiatives and pass referendums in Idaho. While
the overall framework would be largely unchanged from the current framework in place
under title 34, chapter 18, Idaho Code, a discussion of the legal standards governing this
framework is required to analyze whether the changes in the proposal would be legally
permissible.
There is no federal right to initiate legislation or to hold referendums. 2 That said,
restrictions on qualifying an initiative or referendum for the ballot may directly or indirectly
impact core political speech and thereby violate the First Amendment of the U.S.
Constitution. 3 Restrictions related to qualifying an initiative or referendum for the ballot
may also violate the Equal Protection Clause of the U.S. Constitution. 4 However, the
analysis begins under Idaho's Constitution.
Idaho lawmakers passed Senate Joint Resolution 12 in 1911, which was a
resolution to amend the Idaho Constitution to authorize an initiative and referendum
process for its citizens.5 Idaho voters approved the constitutional amendment at the
general election in 1912.6
Article Ill, section 1 is the relevant provision of the Idaho Constitution governing
the right of the citizenry to enact law via initiative. After the provision was ratified in 1912,
it provided, in pertinent part, the following:
The people reserve to themselves the power to propose laws, and enact
the same at the polls independent of the legislature. This power is known
as the initiative, and legal voters may, under such conditions and in such
manner as may be provided by acts of the legislature, initiate any desired
legislation and cause the same to be submitted to the vote of the people at
2 Angle v. Miller, 673 F.3d 1122, 1127-28, 1133 (9th Cir. 2012) (citations omitted).
3 See id. at 1132-33 (citations omitted).
4 l!i at 1127-28.
5 See Kristin M. Ford, Initiative & Referendum Process in Idaho: A Research Guide, 26 Legal
Reference Servs. Q. 79, 80 (2007) ("Research Guide"); S.J. Res. 12, 11th Leg, 1911 Idaho Sess. Laws 786
(ratified Nov. 5, 1912).
6 Ford, Research Guide, 26 Legal Reference Servs. Q., at 80; Westerberg v. Andrus, 114 Idaho
401, 402-03, 757 P.2d 664, 665-66 (1988).

Secretary of State Denney
April 29, 2021
Page 4

a general election for their approval or rejection provided that legislation
thus submitted shall require the approval of a number of voters equal to a
majority of the aggregate vote cast for the office of the governor at such
general election to be adopted.?
The foregoing provision provides the language of the constitutional section as it
read after the 1912 amendment, with the underlined clause showing the language deleted
by a 1980 amendment to the Idaho Constitution, which has been the only change made
to Idaho's constitutional provisions regarding initiatives and referenda since 1912. 8
Idaho courts have determined that the right of the people to initiate laws and hold
referendums is not self-operating.9 This right "can only be exercised 'under such
conditions and in such manner as may be provided by acts of the legislature."'10 The
Legislature could not agree upon the "conditions" or "manner" of the initiative (and
referendum) process until 1933, which is currently codified at title 34, chapter 18, Idaho
Code.11 When Idaho Code section 34-1805 was enacted, it required that a petition "have
affixed 'signatures of legal voters equal in number to not less than ten per cent (10%) of
the electors of the state based upon the aggregate vote cast for governor at the general
election next preceding the filing of such initiative ... petition."'12
In Dredge Mining Control-Yes!, Inc. v. Cenarrusa ("Dredge"), the Idaho Supreme
Court examined the "conditions" and "manner" that the Legislature may establish for the
exercise of the right to initiate laws without violating the right to initiate itself.13 The court
analyzed whether the 10% signature requirement in then-Idaho Code section 34-1805
was a permissible condition on the right to initiate laws.14
The trial court upheld the requirement, concluding "[t]he legislative procedures
outlined in Chapter 18 of Title 34, Idaho Code, are not unreasonable and must be

7 Westerberg, 114 Idaho at 402-03, 575 P.2d at 665-66 (emphasis added).
8 See Ford, Research Guide, 26 Legal Reference Servs. Q., at 81; S.J. Res. No. 112, 45th Leg.,
2nd Reg. Sess., 1980 Idaho Sess. Laws 1028 (ratified Nov. 4, 1980).
9 See Johnson v. Diefendorf, 56 Idaho 620, 57 P.2d 1068, 1075 (1936) (holding the right of
referendum also provided in article Ill, section 1 is not self-operating, but rather its exercise is dependent
upon the statutory scheme enacted by the Legislature).
10 Westerberg, 114 Idaho at 404, 757 P.2d at 667 (emphasis omitted) (quoting Idaho Const. art.
Ill, § 1).
11 See id. See a/so H.B. 186, 22nd Leg., 1933 Idaho Sess. Laws 431.
12 Dredge Mining Control-Yes!, Inc. v. Cenarrusa, 92 Idaho 480,481, 445 P.2d 655, 656 (1968)
(quoting Idaho Code 34-1805 (1933)).
13 See generally id.
14 kl at 481-84, 455 P.2d at 656-59.

Secretary of State Denney
April 29, 2021
Page 5

complied with. While they may be cumbersome they are nevertheless workable[.]" 15 The
appellants challenged the trial court's conclusion, arguing the certification of the
signatures by the clerks of the district courts was "a practical impossibility" and
"unworkable" under Idaho voter registration laws, raising concerns about the clerks' ability
to verify signatures.16
The Idaho Supreme Court concluded the "statutory scheme set up by the
legislature, although restrictive and perhaps cumbersome, is reasonable and
workable." 17 It identified work-arounds to the concerns appellants raised about the ability
of clerks to verify signatures and noted that no signatures in the lower court case had
been rejected for lack of genuineness.18 Ultimately, "the provisions of the law enacted
by the legislature pertaining to the initiative procedures are reasonable."19
Thus, under the standard established by the Idaho Supreme Court, the "conditions"
and "manner" established for the exercise of the right to initiate and hold referendums
must be "reasonable and workable" to avoid violating the rights contained in article Ill,
section 1 of the Idaho Constitution, although they may be "restrictive and perhaps
cumbersome." 20
The Legislature next revised the "conditions" and "manner" of the signature
percentage requirement in 1997. 21 The 10% total signature requirement was reduced to
6%, but a geographic distribution requirement was added to require signatures from 22
counties equal to and not less than 6% of the qualified electors at the time of the last
general election in each of those 22 counties.22
While not challenged under the reasonable and workable test, the geographic
distribution requirement was challenged in Idaho Coalition United for Bears v. Cenarrusa
("ICUB") based upon the 14th Amendment's Equal Protection Clause.23 "Voting is a
fundamental right subject to equal protection guarantees under the Fourteenth
Amendment." 24 When a state gives its citizens the right to enact laws by initiative and
15 ~ at 483,455 P.2d at 658.
16 ~ The trial court had interpreted "legal voters" to mean registered electors and the Idaho
Supreme Court upheld this conclusion. See & at 482, 455 P.2d at 657.
17 ~ at 484, 455 P.2d at 659 (citations omitted).
18 ~
19 ~
20 ~ (citations omitted).
21 H.B. 265, 54th Leg., 1st Reg. Sess., 1997 Idaho Sess. Laws 756, 759.
22 ~
23 234 F. Supp. 2d 1159, 1160-62 (D. Idaho 2001 ).
24 Idaho Coal. United for Bears v. Cenarrusa, 342 F.3d 1073, 1076 (9th Cir. 2003) (citation

Secretary of State Denney
April 29, 2021
Page 6

hold referendums, "it subjects itself to the requirements of the Equal Protection Clause." 25
Laws governing the process may not engage in impermissible vote dilution nor may they
discriminate against an identifiable class of voters.26
The district court in ICUB found the geographic distribution requirement
unconstitutional because it gave rural voters preferential treatment:
Because over 60% of Idaho's population resides in just 9 of the State's 44
counties, it is easy to envision a situation where ¾ of Idaho's voters sign a
petition but fail to get it on the ballot because they could not collect 6% of
the vote in the rural counties.27
The Ninth Circuit Court of Appeals affirmed the district court's decision in 2003 on
Equal Protection grounds.28 In so ruling, the Ninth Circuit found that the geographic
percentage distribution requirement based upon counties of uneven population violated
the Equal Protection Clause because it allocated "equal power to counties of unequal
population." 29 The Ninth Circuit did note, however, that Idaho's geographic distributional
requirement could be saved by basing it on existing state legislative districts (i.e., districts
that were equipopulous).30 And that the purposes underlying a geographic distributional
requirement could be accomplished through these legislative districts by "simply
increasing the statewide percentage of signatures required-from six to twelve percent
or to any other percentage Idaho deemed desirable."31 The stated purposes underlying
the geographic distributional requirement were: requiring a modicum of statewide support;
preventing a long and confusing list of initiatives appearing on the ballot; protecting
against fraud; informing the electorate; ensuring the "integrity" of the ballot process; and
promoting "grassroots direct legislation efforts."32
The Idaho Legislature amended Idaho Code section 34-1805 again in 2007.33 The
geographic distribution requirement was completely removed, but the total signature
percentage requirement remained the same at 6%.3 4 Six years later, the Idaho
omitted).
25 Jsi. at 1077 n. 7 (citation omitted).
26 Angle, 673 F.3d at 1128-29.
27 ICUB, 234 F. Supp. 2d. at 1165.
28 See ICUB, 342 F.3d at 1074.
29 Jsi. at 1078.
30 Jsi.
31 Jsi. at 1079.
32 Jsi. at 1078-79.
33 H.B. 214, 59th Leg., 1st Reg. Sess., 2007 Idaho Laws 619,622.
34 Jsi.

Secretary of State Denney
April 29, 2021
Page 7

Legislature re-imposed a geographic distribution requirement based upon equipopulous
legislative districts.35 The signature percentage requirement remained the same, but it
required 6% of "the qualified electors at the time of the last general election in each of at
least eighteen (18) legislative districts; provided however, the total number of signatures
shall be equal to or greater than six percent (6%) of the qualified electors of the state at
the time of the last general election."36 This is the law that was in effect until April 17,
2021, when Governor Little signed S.B. 1110. The potential effect of S.B. 1110 on this
proposed initiative is discussed further below.
It is worth noting that Idaho Code section 34-1805 was recently challenged in
federal court again on Equal Protection grounds. 37 Like the proposed initiative here, the
plaintiff sought to invalidate the geographic distribution requirement entirely in section 341805. 38 The court noted that this matter had not been litigated extensively, but found
numerous cases on point in the Ninth Circuit and other federal circuits to conclude that
the plaintiff did not have a redressable cause of action.39 The court relied heavily on
ICUB, which explicitly supported geographic distribution requirements for signature
gathering if based upon equipopulous legislative districts.40
With regard to the First Amendment, "[t]he [U.S.] Supreme Court has identified at
least two ways in which restrictions on the initiative process can severely burden 'core
political speech."'41 First, a restriction could "restrict one-on-one communication between
petition circulators and voters." 42 Second, it could make it less likely that a proponent of
a measure could gather the necessary signatures to place an initiative on the ballot,
thereby "'limiting their ability to make the matter the focus of statewide discussion."'43
In analyzing First Amendment concerns related to initiative and referendum
procedures, the court will first ask whether the law imposes a "severe burden" on a
plaintiff's rights. 44 Laws imposing severe burdens must be "narrowly tailored and
advance a compelling state interest." 45 "Lesser burdens ... trigger less exacting review,
35 S. B. 1108, 62nd Leg., 1st Reg. Sess., 2013 Idaho Laws 503, 504.
36 &
37 lsbelle v. Denney, Case No. 1: 19-cv-00093-DCN, 2020 WL 2841886 (D. Idaho Jun. 1, 2020).
38 Id. at 1, 3, 1 n.1.
39 & at 3.
40 & at *4.
41 Angle, 673 F.3d at 1132 (quoting Meyer v. Grant, 486 U.S. 414,422, 108 S. Ct. 1886, 1892,
100 L. Ed. 2d 425 (1988)).
42 & (citation omitted).
43 & (quoting Meyer, 486 U.S. at 423).
44 &
45 & (citation omitted).

Secretary of State Denney
April 29, 2021
Page 8

and a State's important regulatory interests will usually be enough to justify reasonable,
nondiscriminatory restrictions." 46

B.

Laws Setting the Conditions and Manner Governing How the Rights of
Initiative and Referendum May be Exercised Are Likely a Proper
Subject for Initiative.

While article Ill of the Idaho Constitution expressly gives the Legislature the power
to control the conditions and manner by which the right to initiate laws may be exercised,
this is likely a proper subject for an initiative.47 Generally, where the Legislature may
legislate, the people may initiate.48
The Idaho Supreme Court has previously found that a power explicitly granted to
the Legislature may be exercised by the people under the right to initiate laws. In Rudeen
v. Cenarrusa, the Court upheld the Idaho Term Limits Act Initiative of 1994, which limited
multi-term incumbents' right to ballot access. 49 The Court upheld the initiated laws as a
valid exercise of the power vested in the Legislature and the people of Idaho granted by
the combination of article Ill, section 1, and article VI, section 4 of the Idaho
Constitution. 50
Article VI, section 4 of the Idaho Constitution provides "[t]he legislature may
prescribe qualifications, limitations, and conditions for the right of suffrage, additional to
those prescribed in this article, but shall never annul any of the provisions in this article
contained."51 The Rudeen Court interpreted this provision as granting the people, as well
as the Legislature, authority to add limitations to the right of suffrage.5 2 Despite the fact
that the provision specifically named the Legislature as the authorized entity, the Court
concluded that the authority extended to the people under the right of initiative, upholding
the initiative under articles Ill and VI of the Idaho Constitution. 53
The reverse is also true. In Westerberg, the Idaho Supreme Court held the people
may not enact a lottery through the initiative process when the Legislature is prohibited
46 .!iL (emphasis and citation omitted); Burdick v. Takushi, 504 U.S. 428, 433-34, 112 S. Ct. 2059,
2063-64, 119 L. Ed. 2d 245 (1992).
47 See Idaho Const. art. Ill,§ 1 ("legal voters may, under such conditions and in such manner as
may be provided by acts of the legislature, initiate any desired legislation").
48 See City of Boise v. Keep the Commandments Coal., 143 Idaho 254,256, 141 P.3d 1123, 1125
(2006) ("If a subject is legislative in nature, it is appropriate for action by initiative.").
49 Rudeen v. Cenarrusa, 136 Idaho 560, 38 P.3d 598 (2001).
50 Id. at 567-68, 38 P.3d at 605-06.
51 (Emphasis added.)
52 Rudeen, 136 Idaho at 567, 38 P.3d at 605.
53 .!iL at 567-68, 38 P.3d at 605-06.

Secretary of State Denney
April 29, 2021
Page 9

from so doing. 54 Westerberg indicates that any restrictions on the Legislature's ability to
set the conditions and manner for the exercise of the right of initiative also apply when
the people set the conditions and manner for the exercise of the initiative.
A reviewing court would therefore likely find that the people may set the conditions
and manner for the exercise of the right of initiative via initiative as long as the procedure
established by the people complies with the constitutional standards discussed above.

C. The Requirement that Petitioners Gather Signatures of 6% of the Qualified
Electors without Any Geographic Limitations to Put an Initiative Measure or
Referendum on the Ballot is Likely Constitutional.
As discussed above, until April 17, 2021, Idaho Code section 34-1805 required
that initiative and referendum petitioners collect:
the signatures of legal voters equal in number to not less than six percent
(6%) of the qualified electors at the time of the last general election in each
of at least eighteen (18) legislative districts; provided however, the total
number of signatures shall be equal to or greater than six percent (6%) of
the qualified electors of the state at the time of the last general election.
In light of S.B. 111O's passage, initiative proponents must now collect signatures
from all 35 legislative districts. The proposed initiative seeks to eliminate the need to
collect signatures on a geographic basis. The total number of signatures to be collected
is equal to or greater than 6% of the qualified electors of the state at the time of the last
general election.
As noted above, Dredge has already addressed whether total signature
percentage requirements are permissible conditions and manners in the initiative process
and it found that a 10% total signature requirement was a permissible condition on the
right to initiate laws.55 At that time, there was no geographic distribution requirement. As
the trial court in Dredge concluded, "[t]he legislative procedures outlined in Chapter 18
of Title 34, Idaho Code, are not unreasonable and must be complied with. While they
may be cumbersome they are nevertheless workable[.]"56 Considering that the total
signature requirement is proposed to be less, at 6%, a similar outcome would likely be
reached should the proposed initiative be challenged.
Signature-gathering requirements that meet this standard are also likely to survive
First Amendment scrutiny. Under First Amendment jurisprudence, as long as ballot
54 Westerberg, 114 Idaho at 406, 757 P.2d at 669.
55 Dredge, 92 Idaho at 481, 484, 445 P.2d at 656, 659.
56 !fL. at 483, 455 P.2d at 658.

Secretary of State Denney
April 29, 2021
Page 10

access restrictions do not "significantly inhibit the ability of initiative proponents to place
initiatives on the ballot," they will be upheld as long as the rule furthers "an important
regulatory interest."57 A ballot access restriction works a significant inhibition when
"reasonably diligent" initiative proponents are unable to qualify an initiative for the ballot
as a result of the restrictions.58 Again, by removing the geographic distribution
requirement, the burdens imposed are less than current law.
As for eliminating the legislative district requirement, the Ninth Circuit Court of
Appeals has approved a requirement that initiative proponents collect signatures from a
certain number of registered voters in a// of the state's congressional districts. 59 Other
courts have similarly approved geographic distribution requirements.60 However, the
Ninth Circuit has not held that geographic distribution requirements are required.
Instead, the elimination of the geographic distribution requirements, becomes
more of a policy consideration. As noted in ICUB, the policy considerations underlying a
geographic requirement were: requiring a modicum of statewide support; preventing a
long and confusing list of initiatives appearing on the ballot; protecting against fraud;
informing the electorate; ensuring the "integrity" of the ballot process; and promoting
"grassroots direct legislation efforts."61 Finally, the court in lsbelle concluded its opinion
by noting the effect of striking the geographic distribution requirement as plaintiff intended:
In fact, were the Court to strike down Section 34-1805, it would likely mean
that those who wanted to place initiatives on the ballot would focus solely
on the most populous areas of the state (to increase the chances of
garnering the greatest number of total signatures) and leave less populous
areas with little to no input on important issues. Idaho Code § 34-1805
ensures that ballot initiatives brought in Idaho enjoy broad support-not in
the magnitude of the number of signatures, but in the breadth of where
those signatures come from.62
Based on the above precedent,

it is likely that the signature-gathering

57 Angle, 673 F.3d at 1133, 1135 (citation omitted).
58 KL at 1133-34.
59 KL at 1135-36.
60 See Libertarian Party v. Bond, 764 F.2d 538, 543 (8th Cir. 1985) (requirement that signatures
be obtained from either all, or at least one-half, of Missouri's nine congressional districts and that party
obtain signatures of at least one or two percent, respectively, of votes cast for governor in last gubernatorial
election to place party's name on ballot was not overly burdensome); Maritt v. Governor of N.Y., 366 N.E.2d
1285, 1287 (N.Y. Ct. App. 1977) (upheld requirement of 20,000 signatures with at least 100 signatures from
each district for statewide office).
61 ICUB, 342 F.3d at 1078-79.
62 lsbelle, 2020 WL 2841886, at *5.

Secretary of State Denney
April 29, 2021
Page 11

requirements for initiatives would be upheld as constitutional against a facial challenge
individually and in the aggregate. It is unlikely that a reviewing court would find that the
elimination of a geographic signature requirement to be unreasonable or even required.
Therefore, it is unlikely that these changes would constitute a violation of the Idaho
Constitution, Equal Protection Clause or the First Amendment under the standards
discussed above.

D. The Proposed Ballot Initiative Will Need to Meet the Signature Requirements
for All 35 Legislative Districts Enacted by the Governor on April 17, 2021.
Idaho Code section 34-1805 was amended by S. B. 1110 on April 17, 2021, when
the Governor signed the bill, which contained an emergency clause. Based upon the
signed bill, it now requires initiative proponents to collect a certain percentage of
signatures, equaling or greater than 6% of the qualified electors at the time of the last
general election from all 35 legislative districts in the state of Idaho.
At this point in time, the proposed initiative, which was submitted to the Secretary
of State on April 7, 2021, is currently undergoing the certificate of review process outlined
in Idaho Code section 34-1809(1). Ballot titles have not been issued under Idaho Code
section 34-1809(2). Under Idaho Code section 34-1802(1 ), no petition may be circulated
until the Secretary of State issues the ballot title to the initiative sponsors. In sum,
although submitted, the proposed initiative has not met the statutory procedural
requirements for circulation.
It appears that the petitioner has an inchoate right, which is "a right that has not
fully developed, matured, or vested."63 This scenario is similar to Matter of Hidden
Springs Trout Ranch, lnc.,64 where the appellant had filed an application for a water
appropriation permit.65 While that application was pending, the Legislature amended the
statute to add a fifth criteria.66 The district court held that the amendment applied to the
appellant, who appealed, contending that applying the amendment to a pending
application was a retroactive application of the statute as amended.67 The Idaho
Supreme Court disagreed: "[w]e do not find that the mere initiation of the statutory process
for water appropriation immediately grants the applicant vested rights in the water. The
applicant gains but an inchoate right upon filing of the application which may ripen into a
vested interest following proper statutory adherence."68 It found that "at the time the

63 Schoorl v. Lankford, 161 Idaho 628,631, 389 P.3d 173, 176 (2017) (citation omitted).
64 102 Idaho 623, 636 P.2d 745 (1981).
65 ~ at 623-24, 636 P.2d at 745-46.
66 ~
67 ~ at 624, 636 P.2d at 746.
68 ~ at 625, 636 P.2d at 747.

Secretary of State Denney
April 29, 2021
Page 12

legislation in question was enacted, the status of the appellant had progressed no further
than that of an applicant with a pending application. Appellant therefore possessed no
vested right which could be interfered with by application of the legislation."69 The Idaho
Supreme Court then upheld the district court's holding that the statutory amendment
adding a fifth criteria to consider when reviewing the appellant's application for a permit
applied to the consideration of that application. 70
This office's reading of the statutory requirements for an initiative petition are
similar to that of the water permit, namely that because the initiative petition is pending
review by the Attorney General, ballot titles must still be prepared and the petition has not
yet been approved for circulation, the initiative "right" has not yet been perfected.
Courts in other states have similarly held that the right to place an initiative on the
ballot is not a "vested right" protected from changes in statutory law. 71 In Committee for
Better Health Care for All Colorado Citizens, the plaintiff filed its proposed initiative with
the appropriate office on May 5, 1989.72 On June 7, 1989, the Initiative Title Setting
Board met and established the title, submission clause and a summary pursuant to the
then-effective statute.73 On June 10, 1989, amendments to the statutory scheme
regulating the initiative process became effective.7 4 Then the plaintiffs began collecting
signatures.7 5 After a number of signatures were rejected by the Secretary of State,
plaintiffs attempted to exercise a curative process available under the previous statutory
scheme.76 The court approved the Secretary's application of the amended statutory
scheme to all events that transpired after June 7, 1989, concluding that the plaintiffs did
not have vested rights in the procedural and remedial measures available under the prior
statutory scheme.77
The Idaho Legislature implemented S.B. 1110 with an emergency clause. The
Governor signed S. B. 1110 into law on April 17, 2021. The above case law demonstrates
that the signature requirements in S.B. 1110 now apply to all events that occur after April
17, 2021, the effective date of S.B. 1110.

69 J.Q,
70 J.Q,
71 See Comm. for Better Health Care for All Colo. Citizens v Meyer, 830 P.2d 884, 891 (1992);
Jacober v. Bd. of Comm'rs of City of Covington, 607 S.W.2d 126, 128 (1980).
72 lg_, at 887.
73 J.Q,
74 J.Q,
75 J.Q,

76 lg_, at 888.
77 lg,_ at 891.

Secretary of State Denney
April 29, 2021
Page 13

CERTIFICATION

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style,
and matters of substantive import. The recommendations set forth above have been
communicated to the Petitioner via copy of this Certificate of Review, deposited in the
U.S. Mail to Luke Mayville, 419 W. Union St. Boise, Idaho 83702.

~c✓LAWRENCE G. WASDEN
Attorney General

Analysis by:

Robert A. Berry
Deputy Attorney General