Bid farewell to referendums if HB652 becomes law

House Bill 652, which is designed to critically wound citizen initiatives in Idaho, will also administer an absolute kill shot to the citizen referendum. 

For those not familiar with the referendum, it is an infrequently used mechanism that allows voters to veto a bill enacted into law by the Legislature. Voters can make a law with the initiative or use the referendum to veto a law passed by the Legislature. The reason that the people rarely use the referendum is that the Legislature has set timelines that are nearly impossible to meet. Referendum petitions with the required number of signatures must be submitted to the Secretary of State no later than 60 days after adjournment of the legislative session in which the bill they want to veto is passed. Most of those 60 days would be spent trying to fulfill bureaucratic requirements before signature gathering could actually commence.

The last time voters used the referendum was in 2012, when it was used to veto three unpopular education laws, commonly called the “Luna Laws.” It took a herculean effort to meet all of the bureaucratic requirements and gather the signatures. Approval of HB 652 would render the referendum useless. That, in turn, would result in a successful court challenge of the new law.

There is a serious drafting error in HB 652. One section sets a 60-day public review period in the Secretary of State’s office just for initiatives. During those 60 days, petition signers can remove their signatures from an initiative, which is a constitutional problem in its own right. The next section just assumes that the 60-day public review period applies to both initiatives and referendums–sloppy work.

Regardless of how the signature removal provision applies, it is an unconstitutional burden on the right of voters to use both the initiative and the referendum. The Florida Supreme Court issued a remarkable decision in 2010 that clearly spelled out the danger. The Court’s reasoning applies to both the initiative and the referendum. 

The Florida Court said: “These signature-revocation provisions substantially burden the constitutional rights of initiative proponents and initiative signatories by affording initiative opponents an unopposed, definitive opportunity to ‘persuade’ electors to revoke their signatures for any reason and by any means, even illegitimate.”

The Court continued, “the provisions vest rival political action committees with the primary responsibility for drafting, distributing, marketing, and submitting petition revocation forms, and render it practically impossible for initiative proponents to determine whether they have obtained the requisite number and distribution of verified signatures until it is too late to gather, submit, and verify additional signatures.”

The Court concluded: “Placing a signature upon an initiative petition does not signify one's definitive agreement with a proposed amendment or revision; rather, one is merely agreeing that the proposal is worthy of statewide consideration and discourse for a vote at a later date. If an elector simply changes his or her mind in this regard, he or she remains free to participate in public discussion and to vote against the proposal.”

Some proponents of HB 652 argued in the House that the bill would not apply to the Open Primaries Initiative, which is currently being circulated. However, that is a debatable issue because of the bill's troublesome wording. Under current law, a signer may have his or her signature removed at any time prior to the county clerk's verification of the signature. That would occur well before June 30 because that is the deadline for clerks to send their petitions to the Secretary of State. 

The effective date of HB 652 is July 1 of this year. HB 652 provides that the Secretary of State will have a public review period starting after receipt of the initiative petitions and extending for 60 days, during which signers can request that their signature be removed, even though the signature would have already been certified by the county clerk well before that time. You can bet that opponents of the initiative would then argue that the public review period becomes immediately effective on July 1 and that signers can have their signatures removed from the Open Primaries Initiative for the duration of that period.

HB 652 is an unconstitutional mess and should be put out of its misery in the Senate.

Jim Jones is a Vietnam combat veteran who served 8 years as Idaho Attorney General (1983-1991) and 12 years as a Justice on the Idaho Supreme Court (2005-2017). Ben Ysursa served as Idaho Secretary of State from 2003 to 2015. He served as Deputy in the office from 1974 to 1976 and as Chief Deputy from 1976 to 2002. He received the Outstanding Administrator Award from the Idaho Republican Party in 1992.