Deputy AG: Idaho Bill to Ban Petitions at Pot Shops Likely Unconstitutional

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Idaho Citizens Coalition’s Russ Belville collecting signatures for the Idaho Medical Marijuana Act at Treasure Valley Cannabis Company in Ontario, Oregon.

Gov. Little has until 7:12pm tonight to sign or veto SB 1150a, the bill to ban collection of signatures for Idaho initiatives and referenda outside of the state of Idaho. Or maybe 7:12pm next Tuesday. Or maybe not at all. It’s a very confusing situation at the Idaho legislature.

What is not confusing is the opinion of Deputy Attorney General Robert A. Berry, who wrote that the bill would probably be found unconstitutional, “because it likely discriminates against an identifiable class of voters without sufficient justification.”

This is the argument we have been making on these pages since the bill’s introduction by Sen. Patti Anne Lodge. We noted that the people’s power under the state constitution to propose and pass initiatives does not cease to exist when they are out-of-state.

Early in the process of passing this bill, its proponents tried to maintain a façade that it was necessary to protect the integrity of the initiative process, but it was clear to everyone that there was only one subject for which collecting signatures out of state was practical: marijuana legalization favored by the hundreds of Idaho customers crossing the border to purchase legal marijuana.

Idaho Cannot Repeal the Law of Supply & Demand

It doesn’t matter how illegal marijuana is in Idaho when it is for sale over-the-counter just over the border.

Knowing that the constitutional rights of whom they’d just consider a bunch of “potheads” wouldn’t sway the committee, we testified about the other Idahoans whose constitutional rights would be affected by SB 1150a. “All this bill will succeed in accomplishing is further restricting the initiative petition rights of Idaho college students who may be studying abroad,” we explained, “Idaho servicemembers who may be deployed overseas, and Idaho businesspeople who may have extended work out-of-state.”

Our testimony was successful in bottling up the bill in the House, as enough Republicans agreed that disenfranchising members of the military and missionaries who are stationed out of state was wrong.

Just when we thought we had slayed this dragon, Rep. Brent Crane came back with an amendment to SB 1150 that specifically exempted military and missionaries from the out of state signature ban. This cynical move was enough to sway Republicans into supporting it, as now presumably only the bad marijuana people would be losing their constitutional right to petition.

That amendment could be its own petard by which it is hoisted. A ban on all out of state signature gathering might be defended, since it affects all Idahoans equally. By singling out different groups of people to whom the ban does not apply, however, it runs afoul of constitutional equal protection considerations and “prior restraint,” a doctrine forbidding the government from selectively squelching free speech (and petitioning is free speech) based on content. You can’t say brave soldiers and pious missionaries have a right, but dirty potheads don’t, just because you like the former and hate the latter.

The Idaho representative who sought the Attorney general’s opinion seems to understand that, even if he can’t bring himself to explicitly recognize the rights of Idahoans shopping for legal marijuana.

Rep. Colin Nash, D-Boise, who requested the Attorney General’s opinion, said, “Your constitutional right to sign a ballot initiative is not suspended at the Oregon border, no more than your right to vote is suspended when you leave the state but intend to remain a resident.” That’s why we have absentee ballots, he noted.

Nash, an attorney, said, “An example of the provision that we put in there in the amendment was active-duty military that are deployed. Well, what about their family members that are stationed abroad with them but are still residents of Idaho? I feel like they have no less of an interest in signing a ballot initiative than their spouse who might be a service member. Not to mention students or anyone else who has a constitutional right to sign that ballot initiative. We gave them that, and we need to defend that right.”

“The Attorney General’s office knows this is unconstitutional,” Nash said. “It smells unconstitutional. I’d like to see the governor uphold his oath to the Constitution and veto it. It’s an easy one. I think other questions around ballot initiatives are probably less black and white, but this one is clear.”

Idaho Press, “Final bill on governor’s desk likely unconstitutional” by Betsy Russell, May 18, 2021

The only uncertainty remaining about SB 1150a is when the governor has to sign or veto it. When the legislature is in session, he has five business days from the moment it hit his desk, which was last Wednesday at 7:12pm. That would be tonight at 7:12pm.

But the legislature is not in session. When it adjourns, the governor has ten business days to sign or veto, which would be next Tuesday at 7:12pm.

But the legislature is not adjourned. The Senate adjourned but the House went into recess until no later than December 31.

So, are we in session or not? The governor’s office is still evaluating how the split adjournment/recess affects his legal responsibility. By 7:12pm tonight, we will know. And regardless of his actions, we will be expanding our signature gathering at the out of state pot shops, because we feel confident the bill will either be vetoed or found unconstitutional (and we will sue the state to make that happen).

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