Another casualty if constitutional amendment passes: A check on bad Idaho laws | Opinion

“All political power is inherent in the people,” the Idaho Constitution declares in Article I.

In Article III, some of those powers — but by no means all — are delegated to the Idaho Legislature. But certain powers are specifically reserved when creating the legislative branch, including the initiative process, and a seldom-used way for the people to act as a direct check on lawmakers.

“The people reserve to themselves the power to approve or reject at the polls any act or measure passed by the legislature. This power is known as the referendum… ,” reads Article III.

The referendum process may be unfamiliar to many Idahoans because, though initiatives are rare, referenda are even more so. There have been 30 initiatives in Idaho history, but there have been only seven referenda: one in 1933, one in 1966, one in 1986, one in 2002 and three in 2012.

As Reclaim Idaho co-founder Luke Mayville noted in a recent episode of Lunch with the Idaho Way , a proposed constitutional amendment sitting in the House State Affairs Committee is a serious threat to the initiative process that voters used to enact Medicaid expansion. But it’s an even greater threat to the referendum, a problem that has flown under the radar to a significant degree.

The initiative and the referendum

An initiative is a new law proposed and passed by the people. A referendum is the ability of the people to repeal a law passed by the Legislature. They are similar, but one important difference makes referenda much harder to advance than initiatives.

Under existing law, it takes signatures from 6% of total registered voters statewide, including 6% from 18 of 35 legislative districts for an initiative to qualify. The proposed amendment would make it even harder by requiring 6% from all 35 districts. Mayville said that would leave the initiative open to only deep-pocketed, corporate-backed campaigns that could spend millions on paid signature gatherers, rather than using the volunteer-led process Reclaim Idaho has.

But a referendum has to complete that same process in only 60 days, compared to 18 months for an initiative. Mayville said it would likely be impossible to get that done no matter how deep your pockets were.

Some districts are much harder to gather signatures in than others. Legislative District 8, for example, is a six-hour drive from its terminus in northern Lemhi County to the eastern border of Fremont County near Yellowstone National Park. It contains no town with more than 10,000 people where it would be easy to gather lots of signatures.

To qualify a referendum you’d need more than one of every 20 voters in that sprawling country to place their physical signature on a piece of paper in less than two months — along with every other part of the state. It can’t be done.

“The logistical challenges, even with say $5 million, would be too great to pull that off,” Mayville said. “... The referendum process, that’s probably dead.”

The last referendum

The last time a referendum was on the ballot was 2012, when voters overwhelmingly rejected the Luna Laws — a set of policies championed by then-Superintendent Tom Luna that included efforts to bust the teachers union and to tie teacher pay to test scores.

Robin Nettinga was then the executive director of the Idaho Education Association, the statewide teachers’ union that spearheaded the effort to strike down the Luna Laws.

Even then, when no district requirement was in place, the time limit was nearly impossible to meet, she remembers.

“During the legislative session when we could see what was going on with the Luna Laws, … it became clear that we were probably going to have to mount a referendum,” she said.

So signature-gathering preparations had to start long before the bill had even passed to have any hope of hitting the deadline.

“We were doing all the background that’s required in the law as the legislation was working its way through the Legislature,” she said.

A teacher’s union, which by its very nature has an enormous membership spread out in every corner of the state, had advantages that few other referendum campaigners ever will.

“We were absolutely very fortunate that not only did we have members in every community throughout the state, but we also had satellite offices throughout the state,” Nettinga said.

Lawmakers crack down

Once the Luna Laws referenda were put to voters, the election was not close. Not one of the laws got above 43% support, so all three were repealed.

Lawmakers weren’t happy that the people overruled them, so in 2013 they retaliated by making initiatives and referenda harder to get on the ballot — an effort that precisely mirrors their efforts to eliminate the initiative right following Medicaid expansion.

Idahoans have not been able to vote on a single referendum since then. That’s why there is, in fact, a lot of room for reforming the referendum and initiative processes. For example, removing the district reform entirely would be a positive reform. So would removing the statewide requirement, and requiring only 6% from, say, any five legislative districts. Or build a system to allow remote signing, to allow online campaigns to more easily reach rural areas, where physical signature gathering is logistically more difficult.

And perhaps most important would be to extend the deadline for a referendum from 60 days to 180 days. That would give the people a real chance to exercise the rights they reserved for themselves when they created the Legislature.

But the Legislature’s Republican supermajority has time and again proven itself to be power-hungry. So don’t count on them trying to create such reforms themselves. And if they manage to enact their proposed amendment, no means outside the Legislature would exist to create such reforms.

The Legislature would have what it wants: free rein, with no check from the citizenry.

So it’s a one-way road. If we walk down it, we can never come back. Now is the time to tell members of the Idaho House not to drag us down it.