Idaho’s Petition Law is Unconstitutional

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On June 25, 2019, plaintiff John Belville turned in the signatures of 20 electors to declare his intent to submit an initiative petition to the Secretary of State’s Office for the purpose of amending state law regarding the medicinal use of cannabis. On August 9, 2019, Secretary of State Lawerence Denney certified the Idaho Medical Marijuana Act of 2020 for circulation.

According to the Idaho Constitution, Article III, Section 1, “The people reserve to themselves the power to propose laws… to be submitted to the vote of the people at a general election for their approval or rejection.” The Idaho Constitution empowers the legislature to determine the “conditions” and “manner” of determining how the people propose those laws, or initiatives. “The people” are understood to be Idaho electors with equal rights and power to propose those initiatives.

That is not the case under current Idaho law, however, where the right and power to propose and approve initiatives varies according to population density.

In the 20th century, the Idaho Legislature had enacted a law that imposed a geographic requirement as a condition of placing an initiative on the ballot – a petitioner had to gather six percent of the registered voters’ signatures from 22 of 44 Idaho counties – in addition to clearing a threshold of six percent of voters from the state as a whole.

In 2001, in the case Idaho Coalition United for Bears v. Cenarussa, the District Court found the geographic requirement to be in violation of the US Constitution’s Fourteenth Amendment guarantees of Equal Protection. Essentially, the court ruled that the geographic requirement created a disparity in the value of a voter’s signature between rural and urban voters, violating the precept of “one person, one vote.” 

U.S. District Judge B. Lynn Winmill wrote, “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 3/4 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.”

Judge Winmill’s decision was affirmed by the US Ninth Circuit Court of Appeals, which agreed “that this unequal treatment violates the Equal Protection Clause of the Fourteenth Amendment,” and since then, the proportion of Idaho’s population living in urban counties has only increased. Today, almost sixty-three percent of Idahoans live in just six counties, and over thirty-five percent live in the Ada/Canyon County metro area where plaintiff Belville lives.

In 2013, the Idaho Legislature reinstated a geographic requirement with Senate Bill 1108. Instead of counties, however, the law now requires a six percent threshold of voters’ signatures be met in 18 of 35 legislative districts.

Plaintiff Belville is harmed by the current geographic requirement in much the same manner as the plaintiff in Idaho Coalition United for Bears v. Cenarussa almost two decades earlier. Plaintiff Belville is a 77-year-old disabled retiree on a fixed income, living in the most populous area of Idaho. Within a short drive, Plaintiff Belville can collect signatures in the 13 legislative districts that comprise Ada and Canyon Counties.

It is conceivable that Plaintiff Belville could collect signatures of six percent of the entire state’s registered voters without leaving his home area. However, under the current law, once Belville has collected six percent of each of the thirteen districts in those two counties, there is no benefit to collecting signatures there any longer.

This harms Plaintiff Belville by imposing a travel and expense requirement that wouldn’t otherwise be necessary. On November 9, 2019, Plaintiff Belville began a road tour of the state in order to pick up signatures from districts outside his home area.

The district requirement also harms Plaintiff Isbell and every other Idaho voter. If signatures for 13 districts can be gathered in Ada & Canyon counties, then 5 more districts can be gathered in just 4 more urban counties: Kootenai (Coeur d’Alene), Bonneville (Idaho Falls), Bannock (Pocatello), and Twin Falls, to meet the threshold of 18 of 35 legislative districts.

Signatures of less-populated rural districts (like the six-county, 24,215-square-mile District 8, for instance) are of no use to Plaintiff Belville, as the time and effort to drive to such remote outposts for the unlikely prospect of collecting six percent of the voters’ signatures there would not be feasible. Signatures of more-populated urban districts are of no use to Plaintiff Belville once he has collected the six percent needed there.

In either scenario, the right of an Idaho voter like Plaintiff Isbell to engage in his or her constitutional initiative petitioning right has been harmed where it would not be without the legislative district geographical requirement. A voter’s signature from the city of Boise would be just as valuable as a signature from Boise County, as either signature puts Plaintiff Belville one signature closer to six percent of the state’s registered voters.

Furthermore, the legislative district requirement subjects Plaintiff Belville’s petition to removal by opponents, who have a far easier method of removing signatures than Belville has of gathering them. While Belville is forced by the geographic requirement to tour the state to be physically present to witness signatures, opponents need only contact voters by phone, mail, or email, and ask them to strike their names from the petition.

Such a scenario was at the heart of a case in neighboring Utah. In Gallivan v. Walker, the Utah Supreme Court struck down a geographic signature gathering requirement. Proponents of an initiative had gathered the necessary threshold of signatures as required by law from 20 of 29 Utah counties. Opponents then ran a campaign to convince rural voters to strike their signatures. With lower thresholds in the rural counties, opponents were able to convince just a few thousand rural voters to strike their signatures, thus reducing the proponents to meeting the threshold in just 14 of 29 counties, even though the proponents had still met the overall statewide threshold.

In finding for the plaintiff that the geographic requirement was unconstitutional, the Utah Supreme Court found that “voters in the rural, sparsely populated counties have an effective veto in the initiative process simply by virtue of residing in the rural areas of the state.” It seems clear to Plaintiff Belville that the same unconstitutional veto power now exists within Idaho’s rural, sparsely populated legislative districts.

Finally, Plaintiff Belville is harmed additionally by the requirement in Idaho law that petition circulators must be Idaho residents. Due to Idaho’s laws prohibiting cannabis, many of Belville’s family and friends must reside just over the border in Oregon, where their medicinal use of cannabis is legal. Thus, many of the volunteers who could be assisting Belville in collecting those signatures from all areas of the state are barred from doing so.

Such a residency requirement has been overturned by federal courts in many other states, including Oklahoma (Yes on Term Limits v. Savage), Michigan (Bogaert v. Land), Arizona (Nader v. Brewer), Wisconsin (Frami v Ponto), and Colorado (Chandler v. City of Arvada and Buckley v. American Constitutional Law Foundation).

We ask the court to consider these cases and Idaho’s previous geographical requirement, already judged unconstitutional, in finding that the current legislative district requirement and petitioner circulator residency requirement are unconstitutional violations of plaintiff John Belville’s Fourteenth Amendment guarantees of equal protection under the law; plaintiff Ryan Isbell’s right to vote found in the US Constitution; and both the Plaintiffs’ rights to vote and circulate petitions found in the Idaho Constitution.

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