One of the most important powers secured by Idaho’s constitution is the right of the people to reject and propose laws via a referendum or initiative. The initiative power is subject to conditions set by the legislature and several changes may be proposed during the 2025 Legislative Session. When considering a constitutional right, the question then becomes what is the best way to exercise that power in a responsible and appropriate way?
Article 1, Section 2 of Idaho’s constitution proclaims:
“All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform or abolish the same whenever they may deem it necessary; and no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed by the legislature.”
Article 3, Section 1 of Idaho’s constitution makes it clear the people are not subservient to the legislature:
“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.
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.”
While the state constitution gives the people co-equal lawmaking powers, the legislature is provided the authority to set the terms “under such conditions and in such manner as may be provided by acts of the legislature.”
Judging from some of the comments made by lawmakers already this session, it is likely that we will see several proposals this year advocating changes to the people’s power of initiative. One bill has already been introduced proposing changes (HB 2).
Unlike what occurs for a bill, there isn’t an opportunity for public hearings or amendments before the text of a ballot measure is finalized and put before voters. This means voters are given a take it or leave option, even if flaws or problems are identified after a ballot measure qualifies.
One idea to maintain the strong right of initiative while following the more traditional public process that a bill goes through would be to restructure the initiative process as proposals to the legislature. A variation of this legislative initiative option is available in Nevada and Washington.
Here is the requirement under Article 19 of the Nevada constitution:
"The Secretary of State shall transmit such petition to the Legislature as soon as the Legislature convenes and organizes. The petition shall take precedence over all other measures except appropriation bills, and the statute or amendment to a statute proposed thereby shall be enacted or rejected by the Legislature without change or amendment within 40 days."
The Nevada legislature describes the process this way:
"If the Legislature does not enact the initiative without change within 40 days from when the regular session of the Legislature convenes, the question is submitted to the voters at the next general election for approval or disapproval. If the Legislature amends the initiative (and it is passed by the Legislature and signed by the Governor), both versions of the initiative will be added to the ballot at the next general election and the initiative with the highest number of votes in favor will become law."
Under the “initiative to the legislature” option in Washington, there are three possible outcomes for a ballot measure that qualifies:
The legislature can adopt the proposal as submitted without changes. Under this option, the language is not subject to veto by the governor and automatically becomes law if approved by lawmakers;
The legislature can propose alternative language. If this occurs the legislative alternative and original proposal are both placed on the ballot for voters to consider; or
The legislature can take no action other than holding a public hearing. If this occurs the original proposal is placed on the ballot.
Regardless of the option used, lawmakers in the Evergreen State must at least hold a public hearing to allow the case for the policy changes to be heard and identify any concerns.
Article 2, Section 1 of the Washington constitution says about this type of ballot measure:
“Such initiative measures, whether certified or provisionally certified, shall take precedence over all other measures in the legislature except appropriation bills…”
Voters in Washington utilized this “initiative to the legislature” option six times in 2024. Three of the initiatives were directly approved by the legislature and the other three were placed on the ballot.
The ability to directly propose laws is an awesome and important constitutional right of the people in Idaho. To ensure the best policies are enacted and provide a more traditional legislative vetting of proposals, Idaho may want to consider a constitutional amendment transitioning to an “initiative to the legislature” format.
This would allow the people to propose laws while providing an opportunity for lawmakers to enact them directly (without veto threat), propose an alternative, or take no action other than holding public hearings before placing the original proposal directly on the ballot.