‘Tyranny of the minority’

By Ben Olson
Reader Staff

It seems rarer and rarer that good news comes out of Idaho’s increasingly batty political sphere, but Aug. 23 was undoubtedly a good day for all Idahoans. That’s when the Idaho Supreme Court deemed SB 1110, the so-called “anti-initiative” bill which increased signature gathering requirements from 6% of at least 18 legislative districts to 6% of all 35 districts, unconstitutional. The bill was passed by the Senate and House, and later signed into law by Gov. Brad Little, despite critics claiming it was unconstitutional from the beginning.

Idaho Supreme Court Justice Gregory W. Moeller wrote a majority opinion for the court, claiming the law violates the Idaho Constitution “because the initiative and referendum powers are fundamental rights, reserved to the people of Idaho, to which strict scrutiny applies.”

Justice Robyn M. Brody drove home a finer point, stating that “SB 1110 is not reasonable and workable. … I agree wholeheartedly with the court’s conclusion that SB 1110 gives every legislative district in the state veto power and turns a perceived fear of ‘tyranny of the majority’ into an actual ‘tyranny of the minority.’ I would invalidate SB 1110 on that ground.”

That phrase — ‘tyranny of the minority’ — is the most apt way to describe what Idaho politics has turned into over the past decade. What started as a conservative movement in the mid-1990s has culminated in a state dominated by the whims and fear mongering of one political party, which seems hellbent on holding its supermajority power no matter how blatantly it violates the Constitution.

The new law would have likely remained unchallenged if not for Reclaim Idaho, the volunteer-driven political group behind the 2018 Medicaid expansion effort in Idaho, which took the case to court and won. The Idaho Supreme Court even awarded attorneys fees to Reclaim Idaho, making this a clear-cut victory for the group.

“Thousands of Idahoans are breathing a sigh of relief today,” Reclaim Idaho co-founder Luke Mayville wrote in a statement after the ruling. “In the face of an assault on the initiative process by the Idaho Legislature, our Supreme Court has fulfilled its obligation to protect the rights of every Idahoan.”

Courtesy photo.

There lies the rub; the rights of every Idahoan. Fringe firebrands like Lt. Gov. Janice McGeachin, Rep. Priscilla Giddings, R-White Bird and Rep. Heather Scott, R-Blanchard, like to boast to their constituents that they are in office to “protect freedoms,” yet after this landmark ruling which very much protected Idahoans’ rights codified in the Constitution, only a spiteful silence has come from these loudmouths. It’s yet another example of partisan hypocrisy taking over Idaho politics. Are these constitutional rights any less important than others?

I’d like to think the overturning of this law by the Idaho Supreme Court would serve as a lesson for the Republican-led legislature which voted for this bill, but that’s probably wishful thinking. With a few exceptions – including Sen. Jim Woodward, R-Sagle, who voted against SB 1110 – Idaho Republicans in the Legislature continue to think they represent the will of the entire state when promoting causes and issues that hype up their base. The fact is, there are a lot more Republicans (and Democrats) in the moderate middle than on the fringes of their party. The problem is they are browbeaten and intimidated by groups like the Idaho Freedom Foundation into supporting candidates who may not necessarily have all of Idahoans’ best interests at heart.

When Reclaim Idaho succeeded in getting the Medicaid Expansion initiative on the ballot in 2018, it came after years of the Republican supermajority failing to act on the issue. Fed up by being shut out of what they perceived was a bipartisan issue, Reclaim Idaho hit the road and gathered enough signatures, ultimately leading to Idaho voters approving the expansion with a 61% majority.

Unable to stomach Idaho voters actually having a voice, Idaho Republican lawmakers began an ongoing assault to move the goalposts out of pure spite that what they viewed as a “leftist” bill actually gained the support of almost two-thirds of Idaho voters. The initiative passed with majority support even in some rural districts. 

A year later, Rep. Sage Dixon, R-Ponderay, introduced a series of bills increasing signature-gathering requirements, which were met with overwhelming public opposition. After several rewrites that took some bite out of the original proposed bill, Dixon’s efforts were rewarded when the Idaho Senate and House passed the bill, sending it to Little’s desk to sign into law. But Little vetoed the bill in 2019, though claiming that he agreed “with the goals and the vision of S 1159 and H 296. … Idaho cannot become like California and other states that have adopted liberal initiative rules that result in excessive regulation and often conflicting laws.”

The Republican lawmakers were undeterred, returning each subsequent legislative session to attempt another go at limiting the powers of the people. When SB 1110 passed the House and Senate in 2021, Little expressed concerns about its constitutionality, but signed it into law anyway. Now that the Idaho Supreme Court confirmed the bill was in fact unconstitutional, Little’s tune waffled a bit.

“In considering future legislation,” Little wrote Aug. 23, “I encourage the Idaho Legislature to ensure that the rights secured by the constitution remain accessible to the people while also securing that each initiative and referendum have an appropriate level of statewide support.”

In other words: stop sending unconstitutional bills to my desk! But, er, freedom and all that.

This merry-go-round will continue to spin out of control as long as Idahoans persist in electing legislators who only value constitutional protections so long as they align with their fringe voter base. 

There are numerous examples of laws overturned as unconstitutional in recent years. The dubiously named “Fairness in Women’s Sports Act” — dubbed the “anti-transgender bill” by critics — was signed into law by Gov. Little in March 2020, but was overturned five months later by a federal court. In 2014, a federal judge overturned Idaho’s ban on same-sex marriage because it violated a couple’s equal protection under the 14th Amendment. It’s notable that this decision came a full year ahead of the U.S. Supreme Court’s ruling in 2015 which made same-sex marriage legal in all 50 states.

More recently, the Idaho GOP flat-out rejected a resolution from the Kootenai County Republican Central Committee that declared support for the John Birch Society, a far-right group that experienced its heyday in the 1950s and ’60s after claiming it would save the nation from a “global conspiracy of leftists and communists.” John Birchers are commonly regarded as conspiracy theorists, believing in such outlandish ideas as a worldwide communist plot to achieve mind-control through water fluoridation or that black helicopters under command of the United Nations covertly patrol the U.S. to accomplish everything from enforcing endangered species laws to establishing a New World Order.

It’s likely that these unconstitutional bills and nonsensical resolutions will continue to plague the Legislature in the future, costing millions of dollars in legal fees when most of the time they should have never been passed in the first place. Sen. Janie Ward-Engelking, D-Boise, told reporters on Aug. 24 that, “Idaho has spent close to $5 million since the 1990s fighting these unconstitutional bills, and we have yet to win one of these cases. It is time to carefully evaluate our legislation before pushing forward.” 

The “tyranny of the minority” is real in Idaho. We are held hostage by the whims of fringe lawmakers who use fear, identity politics and an underlying restiveness that continues to hold Idaho back. The fact that these bills are continually shot down by the judiciary and nonsensical resolutions rejected by state party leaders is a sign that perhaps the line of rationality is holding in Idaho — barely. When Republican voters begin to realize that the fringe elements of their party are destructive to the very republic they claim so loudly to protect, perhaps they can begin voting for a candidate who best represents the people, instead of whoever has an “R” next to their name.