State Democracy Research Initiative
University of Wisconsin Law School

IDAHO

Posted on

Outline of Idaho

Idaho has statutory initiatives (but not constitutional initiatives), veto referendums, and legislatively referred amendments. Both statutory initiatives and legislatively referred amendments must be submitted to voters at general elections pursuant to the state constitution; in contrast, veto referendums may be submitted at any “regular, biennial” election. The information included on the ballot and in other informational materials varies depending on the type of ballot measure. While the Attorney General and Secretary of State play key roles in preparing voter information pertaining to statutory initiatives and veto referendums, the Legislative Council plays a more central role for legislatively referred amendments. Idaho law explicitly provides for judicial review of initiative and veto referendum ballot titles. Although there is no explicit provision for judicial review of legislatively referred amendment ballots or related materials, case law suggests that review may be available, including but not limited to post-election judicial review in cases alleging a defect that was misleading to voters.

BACKGROUND INFORMATION

What forms of direct democracy are available, and when?

Statewide Ballot Measures in Idaho

Idaho has statutory initiatives (but not constitutional initiatives), veto referendums, and legislatively referred amendments.

√ Initiatives – Statutory

The people of Idaho have the initiative power to propose and enact legislation independent of the legislature. Idaho Const. art. III, § 1.

X Initiatives – Constitutional

√ Veto Referendums

Idahoans have the referendum power to demand that any act of the legislature be submitted to the voters for their approval or rejection. Idaho Const. art. III, § 1.

√ Legislatively Referred Amendments

An amendment to the state constitution proposed by the legislature must be approved by Idaho voters. Idaho Const. art. XX, § 1.

Election Timing

Both initiatives and legislatively referred amendments must be submitted to voters at general elections, while veto referendums may be submitted at other “regular, biennial” elections.

  • An initiative must be submitted at a general election. See Idaho Const. III, § 1.
  • A veto referendum election is to take place “in such manner as may be provided by acts of the legislature.” See Idaho Const. III, § 1.
    • Pursuant to statutes, a veto referendum must be submitted to voters statewide “at the biennial regular election” following the filing of the petition with the Secretary of State. Idaho Code § 34-1803. The statute does not explicitly require that such a regular election be a general election as opposed to a primary election.
  • A legislatively referred amendment must be submitted to Idaho voters at the “next general election” after it is approved by 2/3 of all members elected to each house of the legislature, voting separately. Idaho Const. XX, § 1.

BALLOT PREPARATION

What is included on the ballot, and who prepares it?

  • The ballot for an initiative or veto referendum must contain the following information, prepared by the Secretary of State on a separate, official ballot. See Idaho Code § 34-906(3).
    • A ballot title, prepared by the Attorney General before a petition is circulated for signatures. See Idaho Code § 34-1809(2)(a), (c). The Attorney General’s title must be true and impartial and must not be intentionally an argument or likely to create prejudice for or against the measure. sub. (2)(e). A ballot title includes both:
      • A distinctive short title, by which the measure is commonly referred to or spoken of (20 words or less). sub. (2)(d)(i).
      • A general title expressing the measure’s purpose (200 words or less). sub. (2)(d)(ii).
    • A clear and concise statement as to the effect of a “yes” and “no” vote, prepared jointly by the Attorney General and the Secretary of State. Idaho Code § 34-1810(1)(b).
    • (For initiatives only) A fiscal impact statement summary, prepared by the Division of Financial Management (100 words or less). See Idaho Code § 34-1812(1), (3).
      • A more detailed statement of the fiscal impact is included in a voter information pamphlet (discussed below). The fiscal impact statement and summary must be written in clear and concise language, avoiding legal and technical terms whenever possible. sub. (2).
      • The summary must, in a good faith and unbiased manner, describe any projected change in revenues, costs, expenditures, or indebtedness that the state or local governments will experience if the ballot measure is approved by the voters, which can include both estimated dollar amounts and a description placing these into context. See id. (1)-(2).
    • The initiative sponsor’s proposed funding source information, which is submitted to the Secretary of State before a petition is circulated for signatures. See Idaho Code §§ 34-1812(3), –1804(2).
  • The ballot for a legislatively referred amendment must contain:
    • A brief statement setting forth in simple, understandable language the meaning and purpose of the proposed amendment and the result to be accomplished thereby, prepared by the Legislative Council. Idaho Code § 67-453(1)(a). The Secretary of State includes this information on a separate general election ballot form for constitutional amendments and other ballot issues. See id. 34-906(3).

INFORMATION TO VOTERS

What information is provided to voters before the election, and how?

Publication

X Idaho law does not generally require that information about initiatives or veto referendums be published in a newspaper or similar media, except for voter information pamphlets (discussed below).

  • For legislatively referred amendments, the Secretary of State must publish the following information three times, in each newspaper qualified to print legal notices: first no more than six weeks before the election, and finally no more than seven days before the election. See Idaho Const. art. XX, § 1; Idaho Code § 67-913.
    • The full text of the proposed amendment. See id.
    • The ballot statement of the amendment’s meaning and purpose of the amendment, prepared by the Legislative Council. See; see also Idaho Code § 67-453(1)(a).
    • Major arguments for and against the amendment, also prepared by the Legislative Council, and discussed in further detail below. See also Idaho Code §§ 67-913, 67-453(1)(b).

Voter Information Pamphlet

Idaho’s policies with respect to voter information pamphlets vary depending on the type of ballot measure.

  • For each initiative and veto referendum, by September 25 before the election at which the measure is to be submitted to voters, the Secretary of State must cause to be printed, and distributed to every household statewide, a voter information pamphlet containing the following information. See Idaho Code § 34-1812C.  
    • A complete copy of the measure’s text, including the title. Idaho Code § 34-1812C(1)(a).
    • The ballot title, prepared by the Attorney General. See id.
    • An argument for and against the measure (500 words or less, each), including a rebuttal argument (250 words or less, each). Idaho Code §§ 34-1812C(1)(c), 34-1812A, 34-1812B.
      • Any voter or group may file an argument for or against the measure by July 20. See Idaho Code § 34-1812A. If more than one argument for and/or against is received, the Secretary of State must select which one to include in the voter pamphlet, giving priority to the measure’s sponsor, then to bona fide associations of citizens, and lastly to individual voters. See id.
      • Any voter or group submitting an argument for or against the measure must also receive an opportunity to submit a rebuttal argument. See id. 34-1812B. Rebuttal arguments are printed in the same manner as direct arguments, with each rebuttal to immediately follow the direct argument it seeks to rebut. Id.
    • (For initiatives only)
      • The fiscal impact summary and complete fiscal impact statement prepared by the Division of Financial Management. See i §§ 34-1812C(1)(b), –1812.
      • The sponsor’s proposed funding source information. See id. 1(c); §§ 34-1812(3), –1804(2).
  • Idaho law does not require that information about legislatively referred amendments be included in the voter information pamphlet prepared for initiatives and veto referendums. However, for each legislatively referred amendment, the Legislative Council prepares a concise summary of the major arguments advanced by both proponents and opponents. See also Idaho Code § 67-453(1)(b). This summary of major arguments is included in the Secretary of State’s pre-election publications in Idaho newspapers (along with the ballot language and the proposed amendment’s full text). See id. § 67-913. The statement must represent the arguments as fairly as possibl See id. § 67-453(1)(b). In preparing it, the Legislative Council may seek advice or suggestions of known supporters and opponents, or any other persons or groups, and may in its sole discretion use any of the suggested arguments, without providing recognition. See id.

JUDICIAL REVIEW

When and how can the court step in?

  • For an initiative or veto referendum, any person dissatisfied with the ballot titles provided by the Attorney General may appeal to the state supreme court to petition for a different title. See Idaho Code § 34-1809(3). The petition must be made within 20 days of the ballot title being filed with the Secretary of State and is to set forth the reason why the title is insufficient or unfair. See id. The Idaho Supreme Court must hear arguments and certify to the Secretary of State a ballot title and short title to use on the ballot. See id. (3)(c).

Sample case: Idahoans for Open Primaries v. Labrador, 533 P.3d 1262 (Idaho 2023) (holding that initiative ballot titles prepared by the Attorney General failed to comply with statutory requirements, including in that titles did not accurately describe the initiative and were likely to prejudice the initiative; ordering Attorney General to provide new ballot titles for review).

  • Idaho laws do not explicitly provide for judicial review of ballot language or related materials for legislatively referred amendments, but review may be available under other channels, including post-election challenges alleging a defect that was misleading to voters or even pre-election petitions for extraordinary relief. See, e.g., Idaho Watersheds Project v. State Bd. of Land Comm’rs, 982 P.2d 358, 360-62 (Idaho 1999) (citing Nez Perce Tribe v. Cenarrusa, 867 P.2d 911, 912 (Idaho 1993)).