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Left-leaning state Supreme Court gets the initiative wrong, endangering Idaho

Left-leaning state Supreme Court gets the initiative wrong, endangering Idaho

Wayne Hoffman
September 2, 2021
Wayne Hoffman
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September 2, 2021

It’s not surprising that the Idaho Supreme Court ruled against a new law requiring more uniform collection of petition signatures in order for an initiative to qualify for the ballot. What is shocking is how badly the court twisted itself into knots to justify its decision to the satisfaction of the state’s leftists.

Contrary to what the court said, the true story of the state’s constitutional amendment allowing for direct democracy starts in 1911. This is when the Legislature took up, in earnest, the “progressive” era’s goal to let the people propose and pass laws at the ballot box. But lawmakers got stuck on two key details: how many signatures should be required to put a question before voters, and what threshold should be required for passage. Lawmakers even contemplated an 80% threshold for passage. 

Lacking a resolution but wanting to move forward with an amendment for voters to ratify in 1912, the compromise that the House and Senate forwarded to voters was a constitutional amendment that said that the Legislature would get to decide “under such conditions and in such manner” that initiatives make the ballot. Additionally, the amendment read that no initiative could pass unless approved by a majority of electors casting their ballots for governor.

The Direct Legislation League, which was the principle advocate for the initiative process being added to the constitution, was horrified by these two details but initially accepted it as “half a loaf being better than no loaf.” Later, the league officially reversed its position and opted to oppose the initiative amendment. But the amendment passed anyway, and it remained in that form until 1980, when voters removed connection of the results to the gubernatorial election. 

The point being that the Legislature never intended to create what the state Supreme Court now labels as a “fundamental right.” In truth, the initiative was always supposed to be a process that was well restricted under the terms and conditions set by the Legislature, with a somewhat high bar for passage. 

The court, though, decided to ignore all of this, building its arguments around a 1915 bill that the governor at the time, Moses Alexander, vetoed citing constitutional concerns. There is no real legal basis for denying the Legislature its constitutional prerogative to oversee the initiative process. But it’s obvious that the court is now an activist bench, substituting its judgement for that of the state’s elected representatives and senators. 

The court decided that the Legislature’s explanation for wanting signatures gathered across the state, including in rural counties, is just not good enough. Because the court said it’s not and as is usual for legal proceedings, the court need not be right; it need only have the last word. 

Idaho’s top jurists now view the initiative as a vehicle to act “in a democratic fashion to protect minority interests when the Idaho legislature would not,” as the justices ruled unanimously. They  declared the Legislature’s efforts to limit the initiative to be “tyranny of the minority.” This, of course, turns our constitutional republic on its head, wherein safeguards exist to prevent the majority from riding roughshod over the minority via “mob rule.”

This is the kind of crappy result you get when no one is asking about the political and ideological leanings of the members of the court. This summer, when Little appointed government lawyer Colleen Zahn to the Supreme Court to fill a vacancy, I asked his office what he had done to ensure that a conservative was being added to the bench. Two emails brought no response, and that speaks for itself.   

Equally bad, in judicial elections, candidates show up for Republican events, virtue signalling with their attendance that they might be conservatives while refusing to answer any questions about their stances. This is for the formula that has been used to move the judicial branch to the left over the last two decades, allowing the likes of Jim Jones to rise to the rank of chief justice. 

Idahoans deserve to know if their laws are being evaluated by people aligned with Ruth Bader Ginsburg or with Antonin Scalia. Without the right questions getting asked, or with judicial candidates refusing to answer, the court is now firmly planted to the left of center, validating the concept of mob rule, and cutting in its wake legal precedents that are dangerous to the state’s future.

View Comments
  • Al says:

    Wow, Wayne, are you off-base on this one!

    Your statement: "This is the kind of crappy result you get when no one is asking about the political and ideological leanings of the members of the court". And you reference Scalia in your article?

    Scalia recognized that our forefathers established the judiciary as an independent entity, apart from influences from political parties and individuals in the legislative or executive branches. And apart from the influences of lobbyists too, Wayne, sorry.

    The idea was to immunize them from such influences so judges would free from temptation and influences. Your position is antithetical to that. Lovers and protectors of our constitution should abhor the thought of judges issuing opinions based on political ideology.

    Yes, Scalia was appointed by Reagan. A Republican. He was widely regarded as "conservative". But he would not agree that ideology should determine the outcome of court opinions.

    Compare your statement with this famous quote from Scalia: "The judge who always likes the results he reaches is a bad judge." In other words, application of the law requires a judge to be detached from personal views and opinions. A very "conservative" judge might, for example, dismiss a case against a drug trafficker if evidence was illegally obtained, even though the defendant was clearly guilty. That's a quality judge.

    You can see that I, like you, favor Scalia. But do our readers know he authored one of the most celebrated opinions of the "liberal" criminal defense attorneys: Crawford v. Washington? He didn't write the conclusion he desired and "reasoned" a way to get there. He worked through the analysis.

    That's the kind of judges we should have, not ideologists. What you're proposing is called judicial activism. How interesting that you would be promoting activism....

  • john livingston says:

    Best Surpeme Court money can buy!

    • Kat says:

      Isn't it Idaho Freedom Action that's doing all the buying?

    • john livingston says:

      Thanks Al for your kind reply. My references would be The US Constitution The 1st Amemdment---you may recall the right to free speech, INDIVIDUALS to petition government etc., The Federalist Papers #10 would be a start--the violence of faction---read the whole article and substitute "special interst" for faction. and finally the Stanford Law Review on the 1st Ammendment and the Petition Clause. My opinion and I am not an Idaho Supreme Court judge nor did I receive an invitation to The Governor's Cup, that the right to free speech and the right to petition the government are rights reserved to individuals. Over the past 30 years the courts have not agreed with my position. Our Federal Government early on dealt very infrequently with economic issues which lend themselves to the frictions created by the application clandesien leverage, and not until reconstruction and the railroads and the US Grant administration did lobying become a big problem. From the very beginning it has been argued by those who favor my position that lobying is a political process and because of that should be out in the open and when it became more of a behind closed doors activity it marginalized the votes of individaul citizens. Just like in our state when political candidates in individual districts recieve funding from corperations and non-profits that are not doing business in that district, those monies marginalize not only the contributions from within the district, but also the votes. Not only out of state money, but lobyists like IACI/IHA/IMA/CofC/Teachers unions etc. are problematic. In my most humble opinion.

      • Al says:

        Thanks again Dr. Livingston. I have presented to you my opinions with my documentation of evidence of lobbying activities in the 18th century. I have nothing more to add and I rest my case. If you can in any way refute my premise that lobbying occurred in the late 18th century, as presented in the literature provide to you, I will re-engage. You describe current lobbying but no sources to refute my position. Nothing new. I'll let you find it. So far I have provided all the research for our discussion. Get to work Warmest regards.

        (your response to me regarding masks, edited as appropriate in this discussion)

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