What did the Idaho Attorney General say about the 2021 referendum that would have let voters reject Senate Bill 1110, the legislation that made it harder to qualify ballot initiatives by requiring signatures from every legislative district?
Plain-English summary
In April 2021, the Idaho Legislature passed Senate Bill 1110, which the Governor signed into law on April 17, 2021 (Idaho Session Laws Chapter 255 (2021), codified at Idaho Code section 34-1805). The bill changed the rules for qualifying initiatives and referenda for the ballot. Before S.B. 1110, organizers needed signatures from 6% of registered voters in each of at least 18 of Idaho's 35 legislative districts. After S.B. 1110, organizers needed signatures from 6% of registered voters in every one of Idaho's 35 districts.
The change was widely seen as making it dramatically harder to qualify any initiative or referendum, because rural districts with low population can effectively veto a measure even if it has supermajority support statewide.
A referendum petition was filed in late April 2021 to ask voters to approve or reject S.B. 1110 itself. Under Idaho Code section 34-1809, the Attorney General reviewed the proposed referendum and issued an advisory Certificate of Review.
Key points from the AG's analysis:
- S.B. 1110 is a proper subject of referendum under Idaho Code section 34-1803 (which lists what laws can be challenged this way).
- S.B. 1110 took immediate effect on April 17, 2021, when signed, because it included an emergency clause. It will continue in effect "until a majority of the voters approve of the referendum petition at an election." If voters approve the referendum, S.B. 1110 is repealed.
- The petitioner asked for guidance on signature-removal language. Idaho Code section 34-1803B(3) requires every signature page to state that signers can remove their signatures. The AG recommended verbatim language: "Any person signing a petition may remove his signature pursuant to Idaho Code section 34-1803B."
The AG offered no opinion on the policy merits. The certificate is advisory; the petitioner can accept or reject the recommendations.
What this means for you
If you are an Idaho voter who supports broader access to direct democracy
S.B. 1110 raised the signature threshold for ballot qualification dramatically. The referendum option (asking voters to repeal S.B. 1110) was the established legal mechanism. The AG's certificate confirmed it was a proper procedural path. The challenge was practical, not legal: gathering enough signatures under the old (pre-S.B. 1110) thresholds before the law's enactment was timely; gathering them after, under the new geographic constraints, is far harder.
Watch for legal challenges to S.B. 1110 itself. Idaho's signature-distribution requirements have been challenged in court before; the strictness of the post-S.B. 1110 framework may face renewed challenge.
If you are organizing a ballot referendum or initiative in Idaho
After S.B. 1110, you need 6% of registered voters from every one of Idaho's 35 legislative districts. Plan signature gathering accordingly. Rural and sparsely populated districts can be the bottleneck.
For referenda specifically, the timing matters. A bill with an emergency clause takes immediate effect. Your referendum doesn't pause the law; it just provides a future opportunity for voters to repeal it. Plan signature collection around that reality.
Include the section 34-1803B(3) signature-removal language verbatim on every signature page. Missing this language can invalidate signatures and cost you the petition.
If you are a state legislator
The S.B. 1110 / referendum dynamic illustrates the interplay between legislation and direct democracy in Idaho. The Legislature can change initiative and referendum rules, and those changes can themselves be challenged by referendum. An emergency clause makes a law immediately effective and shifts the burden of repeal onto the referendum process.
If you want to insulate procedural laws from referendum, the constitutional path is to put the rules in the Idaho Constitution, where they can only be changed by constitutional amendment. The legislative path (statute alone) is always open to referendum challenge.
If you are a constitutional law practitioner
S.B. 1110's geographic signature requirement raises First Amendment and Equal Protection questions about whether the bar to direct democracy is unduly burdensome. Federal courts have evaluated similar geographic-distribution requirements in other states. The Idaho case (and any future legal challenge to S.B. 1110) sits at the intersection of state direct-democracy doctrine and federal political-rights jurisprudence.
If you are a journalist covering Idaho direct democracy
The certificate-of-review process is a useful starting point for any initiative or referendum story. The AG's analysis identifies legal mechanics, drafting flaws, and procedural requirements. Read it for what's confirmed legally permissible and what's not.
The S.B. 1110 / referendum dynamic deserves periodic revisit: signature thresholds, qualifying initiatives, and the practical effect of the geographic requirement on which proposals make the ballot.
Background and statutory framework
Idaho's referendum process lets voters challenge legislation enacted by the Legislature. Idaho Code section 34-1803 specifies what is and isn't a proper subject of referendum. Once an act is enacted and signed, a referendum petition can be filed to ask voters to approve or reject it. If voters reject, the act is repealed.
S.B. 1110 (Idaho Session Laws Chapter 255 (2021)) amended Idaho Code section 34-1805 to change the geographic signature distribution required to qualify an initiative or referendum. The bill included an emergency clause, taking effect on signing.
Idaho Code section 34-1803B sets out signature-removal procedures. Subdivision (3) requires every petition signature page to state that signers may remove their signatures. The standard language has to appear verbatim on each page.
The AG's review under Idaho Code section 34-1809 is advisory only and limited to legality and form. The AG explicitly does not address policy.
Common questions
Did this referendum make it onto the ballot?
The S.B. 1110 referendum did not qualify under the strict geographic signature distribution that S.B. 1110 itself imposed. That outcome was central to the political debate around S.B. 1110.
Was S.B. 1110 challenged in court?
There were legal challenges to S.B. 1110, including a 2021 Idaho Supreme Court case (Reclaim Idaho v. Denney). The Court struck down portions of S.B. 1110 in that case, finding that the geographic distribution requirement violated the Idaho Constitution's right to initiative and referendum.
Does this AG opinion still matter, given the litigation?
The AG opinion is a snapshot of the legal landscape as of May 18, 2021. Subsequent litigation and rulings may have changed the operative law. Anyone working with Idaho's signature requirements should consult current Idaho Code section 34-1805 and current case law.
What's the practical effect today?
As of 2026, Idaho's signature distribution requirements have been litigated. The exact current standard depends on the most recent court rulings and any subsequent legislative responses. Counsel current Idaho counsel for the operative threshold.
Why does signature-removal language matter?
Idaho law gives signers the right to remove their signature from a petition before submission. Notice of that right has to appear on every signature page. Missing notice means the signatures may be invalid, costing the petitioner the entire petition.
Citations
- Idaho Code section 34-1803 (subjects of referendum)
- Idaho Code section 34-1803B (signature removal)
- Idaho Code section 34-1805 (signature thresholds; amended by S.B. 1110)
- Idaho Code section 34-1809 (Certificate of Review)
- Idaho Session Laws Chapter 255 (2021) (S.B. 1110)
Source
- Landing page: https://www.ag.idaho.gov/office-resources/opinions/
- Original PDF: https://ag.idaho.gov/content/uploads/2021/06/C05182021_Initiatives.pdf
Original opinion text
STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN
May 18, 2021
The Honorable Lawerence Denney
Idaho Secretary of State
Statehouse
VIA HAND DELIVERY
Re: Certificate of Review
Proposed Referendum Petition, S.B. 1110, 2021 Idaho Session Law
Chapter 255
Dear Secretary of State Denney:
A proposed referendum petition was filed with your office on April 26, 2021.
Pursuant to Idaho Code section 34-1809, this office has reviewed the petition and
prepared the following advisory comments. 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.” Due to the available resources and limited time for performing
the review, we did not communicate directly with the petitioner as part of the review
process. The opinions expressed in this review are only those that may affect the legality
of the referendum. This office offers no opinion with regard to the policy issues raised by
the proposed referendum.
BALLOT TITLE
Following the filing of the proposed referendum, 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 referendum, petitioner may submit proposed titles for consideration. Any proposed
titles should be consistent with the above standard.
P.O. Box 83720, Boise, Idaho 83720-0010
Telephone: (208) 334-2400, FAX: (208) 854-8071
Located at 700 W. Jefferson Street, Suite 210
Secretary of State Denney
May 18, 2021
Page 2
MATTER OF SUBSTANTIVE IMPORT
The referendum petition addresses Senate Bill 1110, 66th Legislature, 1st Regular
Session, Idaho Session Laws Chapter 255 (2021) (codified as amended at Idaho Code
section 34-1805), which passed both the House of Representatives and the Senate and
was signed into law by the Governor on April 17, 2021. Pursuant to Idaho Code section
34-1803, Senate Bill 1110 is a proper subject of the proposed referendum. Due to the
inclusion of an emergency clause, Senate Bill 1110 became immediately effective on April
17, 2021, when the Act was signed into law by the Governor and will continue in effect
until a majority of the voters approve of the referendum petition at an election on the
referendum, if one is held.
The cover letter requested guidance in regard to the language necessary to comply
with the Idaho Code section 34-1803B and the removal of signatures. Guidance is found
at Idaho Code section 34-1803B(3), which provides that “[e]ach signature page of an
initiative or referendum petition shall state that any person signing a petition may remove
his signature pursuant to this section.” Our office recommends following this subsection.
Each signature page of the petition should state “Any person signing a petition may
remove his signature pursuant to Idaho Code § 34-1803B.”
CERTIFICATION
| 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 Jim Jones, 3151 N. 24th, Boise, Idaho 83702.
Sincerely,
Phere,
LAWRENCE G. WASDEN
Attorney General
Analysis by:
Robert A. Berry
Deputy Attorney General