On August 23, the Idaho Supreme Court unanimously rejected two recent laws that handicap the ability of people to pass initiatives. Reclaim Idaho v Denney, 48734 and 48760. Here is the 55-page opinion, written by Justice Gregory Moeller.

The decision strikes down a 2021 law that required signatures of 6% of the registered voters in all 35 legislative districts in the state. The decision also strikes down a 2020 law that said no initiative can take effect until July 1 of the year following the election.

The decision uses strict scrutiny, and says that there is no compelling state interest in requiring signatures from all 35 legislative districts. Page 42 of the decision says, “This power (the initiative) is meaningless unless it is accessible.” Page 37 says, “There is simply no logical reason why a ballot proposition supported by 6% of the voters in 34 of the 35 legislative districts has not clearly established that it has statewide support.” The opinion also contains a history of the use of the statewide initiative throughout its existence, and points out that even under the old law, very few initiatives qualified in any one election year.

The decision held that one set of plaintiffs lacked standing, but another set did have standing. Justice John Stegner wrote separately to say that he thought all plaintiffs had standing, and that standing is generally more relaxed under state constitutions than under the U.S. Constitution. Justice Robyn Brody wrote separately to say that although she agrees with the holding, she would not have applied strict scrutiny, but rather a balancing test. Thanks to Thomas Jones for the news.

On August 20, the Sixth Circuit asked Ohio to respond to the pending petition for rehearing en banc in Thompson v DeWine, 21-3514. This is the case over whether petitioning relief should have been granted to initiative proponents during 2020, due to the health crisis. The three-judge Sixth Circuit panel had said the case is moot, but the petition for rehearing made a strong case against that conclusion.

On August 20, U.S. District Court Judge J. P. Boulee, a Trump appointee, enjoined one part of SB 202, the bill passed earlier this year that voting rights advocates fiercely opposed. But the judge declined to enjoin four other provisions of that bill. Here is the 39-page order in Coalition for Good Governance v Kemp, n.d., 1:21cv-2070.

The enjoined law, the “Photography Rules”, ban the use of photographic or other electronic monitoring or recording devices to photograph or record the face of an electronic ballot marker while a ballot is being voted or while an elector’s votes are displayed on such electronic ballot marker.”

The judge declined to enjoin these other parts of the law: (1) the Observation Rule, which prohibits a person from intentionally observing an elector while casting a ballot in a manner that would allow such person to see for whom or what the elector is voting; (2) the Communication Rule, which prevents election observers from telling anyone else how a voter voted; (3) the Tally Rules, which prevents observers from tallying or estimating the number of absentee ballots that have arrived; (4) most important, the Ballot Application Rule, which says that an application for an absentee ballot must be sent in at least eleven days before the election.

There are several other pending lawsuits against SB 202 that deal with other parts of the law.