statutes legislature judicial-review constitutional-rights initiative
Can a court-declared unconstitutional law become valid when it&#39;s added to the constitution?
<p>Idaho is one of the states with citizen initiative and referendum rights in the state constitution (hereafter referred to as &quot;Init.&quot;.) State constitution changes are not allowed under this right. Only the legislature can pass constitutional amendments, then subject to voter approval of just &gt;50% votes.</p>
<p>There have been conflicts over the Init. right because the legislature sets the conditions in state laws to get a petition onto the ballot.</p>
<p>The constitution statement is:</p>
<blockquote>
<p>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, and legal voters may, under such conditions
and in such manner as may be provided by acts of the legislature,
demand a referendum vote on any act or measure passed by the
legislature and cause the same to be submitted to a vote of the people
for their approval or rejection.</p>
<p>The people reserve to themselves the power to propose laws, and enact
the same at the polls independent of the legislature. This power is
known as the initiative, and legal voters may, under such conditions
and in such manner as may be provided by acts of the legislature,
initiate any desired legislation and cause the same to be submitted to
the vote of the people at a general election for their approval or
rejection.</p>
</blockquote>
<p>Essentially, the citizen initiative and referendum rights have been used as checks and balances by the people against the legislature. The legislature has become hostile to citizen initiatives and referendums after some laws were overturned and some laws were passed by citizens on popular subjects the legislature refused to pass or even consider for years.</p>
<p>In 2018, the legislature changed the law to make it much more difficult to get Inits. on the ballot. Previous law (and current as of 2023) requires that valid signatures must equal 6% of the total votes cast in Idaho in the last presidential election, and at least 6% of signatures must come <strong>from each of 18 of Idaho's 35 districts</strong> (51%). The new law required 6% of signatures <strong>from all 35 districts</strong> (100%).</p>
<p>Because of Idaho's vast geography and many rural districts, this makes the process nearly impossible. It effectively empowers <strong>just one district out of thirty-five (3%) to effectively veto</strong> the Init. from getting on the ballot for all of the state voters to decide for themselves whether to make it law or not.</p>
<p>To illustrate the challenge of getting rural signatures in Idaho, legislators are paid extra money for constituent services like fuel to drive around to speak with voters and are paid according to the square miles of each county. Urban county legislators are given $400, while some rural county legislators are paid $3,200 to reach out to their constituents. Those vast distances are what make some areas too difficult to gather 6% of the required signatures.</p>
<p>However, the state supreme court unanimously declared the law unconstitutional because it &quot;was so restrictive that it violated a fundamental right under the state’s constitution.&quot;</p>
<p>Judicial quotes included:</p>
<blockquote>
<p>&quot;the legislature’s duty to give effect to the people’s rights is not a
free pass to override constitutional constraints and legislate a right
into non-existence, even if the legislature believes doing so is in
the people’s best interest.&quot;</p>
<p>&quot;dramatic check on the ballot qualification process without showing a
compelling need for such a check,&quot;</p>
<p>&quot;all qualifying initiatives or referenda are already subjected to a
statewide vote.&quot;</p>
<p>&quot;The legislature’s actions amounted to ... a law that made the
initiative and referendum process more difficult for proponents of
future ballot propositions, while simultaneously making it more
difficult for those opposed to the new law to pass a referendum to
repeal that very law.&quot;</p>
</blockquote>
<p>An example given was that the largest urban district, Boise, could stop an agricultural initiative that is popular in the other 34 districts. When Medicaid expansion was passed in 2018 by the citizen initiative process (61%), one single rural district could have vetoed the question from even getting onto the ballot where all voters (urban and rural) got to decide on it.</p>
<p>This year, 2023, the legislature is close to passing a constitutional amendment that does the same thing as the law that was ruled unconstitutional. Because the people have no power to change the constitution, it's likely to be a permanent death for citizen Inits.</p>
<p><strong>1. Before the election, can a lawsuit prevent the amendment question from being put on the ballot?</strong></p>
<p><strong>2. If passed into the constitution, would a court still have the ability to rule the restrictions unconstitutional?</strong></p>

<blockquote>
<ol>
<li>Before the election, can a lawsuit prevent the amendment question from being put on the ballot?</li>
</ol>
</blockquote>
<p>No. Generally speaking, the constitutionality of an otherwise procedurally proper ballot initiative is not ruled upon until after it has passed (eliminating the need to rule unnecessarily on the constitutionality of failed initiatives).</p>
<p>Of course, if someone tried to put it in the ballot when the existing law conditions for putting it on the ballot were not met (e.g. because a deadline for doing so wasn't met) that could be challenged in court by a party with standing to do so.</p>
<blockquote>
<ol start="2">
<li>If passed into the constitution, would a court still have the ability to rule the restrictions unconstitutional?</li>
</ol>
</blockquote>
<p>Probably not. The constitution as newly adopted doesn't sound like it would forbid doing that. This seems to be the whole point of the constitutional amendment in the first place and it the amendment to the constition is approved, that requirement is gone.</p>
