Amendments to the Idaho Constitution

Idaho’s path to statehood and method of crafting its constitution was unusual. Due to political gridlock in Congress, no states were admitted from 1882 through 1888. However, the tides changed when the Congressional majority “demanded admission of six northwester states in 1889-1890.” Before 1888, it was uncertain if Congress would even preserve Idaho or if, instead, the territory would be divided among its neighbors. Accordingly, having made no preparations for statehood, Idaho’s constitutional convention was forced to “assemble and get its work approved in a decidedly unusual way.” This resulted in “do-it-yourself style” of putting together a constitutional convention, where instead of holding traditional delegate elections, counties were permitted to employ “other equitable method[s]” of selection. Furthermore, when the time came to put the constitution up for approval by territorial citizens, an unavailability of funds to finance a ratification election forced some counties to “resort to some unusual expedients, sometimes involving volunteer election judges and officials, in order to conduct the necessary referendum.” Ultimately, Idaho voters ratified the constitution on November 5, 1889, and the following year, Idaho was admitted to the Union as the 43rd state. Although the constitution has been amended over 140 times, the original 1890 document remains in force. 

The Idaho Constitution can be altered by legislatively-referred amendment or by convention. Both methods require a two-thirds vote of both houses of the legislature and approval by a majority of voters at the next general election. Any revision adopted by a convention must also be submitted to voters for approval.

There have been two attempts to entirely rewrite Idaho’s constitution in the state’s history; both failed. The first, in 1912, ended when voters rejected the legislature’s proposal to call a constitutional convention. The second, in 1970, saw the legislature attempt another tact; however, voters ultimately rejected the proposed constitution. 

For more information on the second attempted revision, see 1970.

Legislative Review of Administrative Rules

This constitutional amendment enshrined the Idaho Legislature’s power to reject or invalidate any proposed or existing rule passed by state executive agencies. Legislative approval or rejection of an administrative rule is not subject to gubernatorial veto.

Functionally, this amendment did not alter Idaho state law—state statutes already gave the Idaho Legislature a legislative veto over administrative rules, which the Idaho Supreme Court upheld as constitutional in Mead v. Arnell. However, the court’s Mead decision was an outlier, as no other state court has ever found such a strong form of the legislative veto constitutional. Recognizing that the Mead decision was vulnerable to being overruled by a future court, the Idaho Legislature proposed a referred constitutional amendment to enshrine the legislative veto. Voters rejected this amendment in 2014; but, after the amendment was reworded and resubmitted to voters two years later, it passed by a narrow margin. Opponents called the move a “power grab” that “disrupt[s] the balance and separation of powers,” and “ignores the will of the people as expressed just two years ago.” 

Right to Hunt, Fish, and Trap

In 2012, voters passed a constitutional amendment adding the right to hunt, fish, and trap to the Idaho Constitution’s Declaration of Rights. The amendment states that hunting, fishing, and trapping are the preferred means of wildlife management in the State and clarifies that enshrining these rights does not affect existing property and water rights. With this amendment, Idaho joined several other States that have also guaranteed a constitutional right to hunt and fish; however, Idaho’s inclusion of the trapping clause was unique and generated some controversy among animal rights activists. Proponents of the amendment pointed to the importance and tradition of trapping and fur trading in Idaho’s history: Trappers were among the first colonizers to settle in Idaho, and the fur trade formed the foundation of Idaho’s economy at that time. Hunting and fishing were also critical for Native American tribes living in what would become the Idaho territory, including the Shoshoni, Nez Perce, Kalispel, and Schitsu'umsh tribes. 

Creating Reapportionment Commission

The 1994 reapportionment amendment enacted two changes: First, it reassigned the task of developing state legislative and federal congressional districts from the Idaho Legislature to a newly created bipartisan Reapportionment Commission. Second, the amendment gave the Idaho Supreme Court original jurisdiction over reapportionment issues, thereby expediting apportionment challenges.

The Reapportionment Commission consists of six members, one appointed by each of the following: Senate president pro tempore, Senate minority leader, House speaker, House minority leader, Idaho State Republican Party Chair, and Idaho State Democratic Party Chair. Citizen commissioners must not have been a registered lobbyist for one year prior to appointment, or an elected official, legislative district representative, or state party officer for two years prior to appointment. Additionally, for five years after serving on the Reapportionment Commission, commissioners may not serve in a legislative capacity. The goal of these requirements is to maintain the independence of the Reapportionment Commission as a citizen-led commission and minimize bias towards incumbents during the redistricting process.

Optional Forms of County Government

In 1994, Idahoans also approved an amendment adding a new Section to Article XVIII of the Idaho Constitution, providing each county with the right to restructure its local government. The goal of this amendment was to provide for greater efficiency and representation at the county level. At the time of ratification, all counties were governed by a three-member board of elected County Commissioners. This amendment gave counties the choice to retain that structure of governance or to choose any of the following optional structures (which were subsequently provided by statute): retaining a board of County Commissioners but increasing membership to five or seven members; placing the county’s executive authority in a single Executive or Manager with part-time County Commissioners; or writing a new county charter reorganizing the entire structure of county government. Adopting a new optional form of county government required approval by a majority of voters in the county.

Limiting the Authority of the Board of Pardons

The 1946 amendment providing for a legislatively-created Board of Pardons instructed that the Board itself “shall have power to remit fines and forfeitures, and to grant commutations and pardons after convictions and judgment, either absolutely or upon such conditions as they may impose[.]” Forty years after the amendment’s passage, in an effort to roll back the Commission’s sole decision-making authority, a new amendment was referred by the legislature and approved by Idahoans to modify this language. The 1986 amendment provided that the Commission’s power to grant commutations and pardons could be exercised, “only as provided by statute,” thereby subjecting the Board to legislative regulation.

Removing Mormon Voter Disqualifications

Historically, Southern Idaho has been home to one of the largest Mormon populations outside of Utah. However, as a developing territory in the late 1800s, Idaho’s government was intensely hostile to Mormons, who were not allowed to vote, serve on juries, or hold office. The organized anti-Mormon movement in Idaho was attributed to a variety of forces: “When non-Mormons came into contact with the theocratic features of Mormon communities[,] they resented the intermixture of religion and politics,” as well as “the tendency of the Mormons to band together against outsiders.” There was also the issue of polygamy, a practice then part of Mormon church doctrine, which “provided a dramatic moral issue over which politicians could become indignant.”   

Mormon disenfranchisement was implicitly enshrined in the original 1890 Idaho Constitution by prohibiting from voting anyone who practiced or encouraged polygamy, or who supported organizations that did. Later that same year, the Mormon church formally pledged to terminate its endorsement of plural marriage. However, in 1891, the Idaho legislature re-enacted a “test oath” that required a prospective voter to attest, among other beliefs, that the laws of the United States and its territories were supreme including over the teachings of any order, organization or association. The test oath aimed to prohibit Mormons from voting, notwithstanding the end of the church’s endorsement of polygamy. 

“Eventually, the Idaho Legislature removed the restrictions against church members in 1893, but the constitutional provision remained on the books until 1982.” Nearly one hundred years after Mormon disenfranchisement was enshrined in Idaho’s Constitution, voters approved an amendment in 1982 removing all references to the outdated oath test, as well as language that disenfranchised “idiotic or insane” persons. However, the amendment left in place the Constitution’s prohibition of persons under guardianship from voting, serving on juries, or holding office. The amendment also streamlined the Constitution’s felon disenfranchisement provision by removing the non-exhaustive list of “infamous crime[s]” warranting disenfranchisement, leaving in place the prohibition on voting for persons convicted of a felony.

Removing Restrictions on Initiative Timing

Under the original terms of the constitutional provision providing for the initiative, an initiated statute had to be passed by a majority of voters who voted in the gubernatorial contest in the same election. As such, initiatives could only be put on the ballot in a gubernatorial election year. These strict timing and majority requirements limited the ability of voters to utilize the initiative power. In 1980, the Senate referred a constitutional amendment to voters striking the requirement that ballot measures be approved by a majority of voters who voted in the gubernatorial contest, thus allowing initiatives to be placed on the ballot at any general election. The amendment passed. 

For more information about the initiative power, see 1912.

Executive Branch Reorganization

Although voters rejected the revised constitution in 1970, certain provisions of that document were successfully adopted as individual amendments. One such provision was Section 20 of Article VI, which aimed to streamline executive authority by limiting the number of executive offices reporting directly to the governor. Specifically, it limits the number of executive departments to twenty (excluding constitutionally created offices and temporary agencies), and mandates that all new and existing agencies and offices be located within those twenty departments. After ratification, however, the legislature decided to keep one slot open for future use. Therefore, all executive agencies in Idaho were located within nineteen departments, resulting in some peculiar arrangements like the Pea and Lentil Commission (yes, there really is such a commission) and the Board of Medicine both belonging to the Department of Self-Governing Agencies. The number of departments has since grown to twenty, allowing the Pea and Lentil Commission to exist under the Department of Agriculture.

Failed Effort to Adopt New Constitution

A second effort to revise the Idaho constitution was mounted in 1965 when the Idaho Legislature created a 15-member commission “charged with making provisions for a constitutional convention in the event one was authorized by the people of the state at the next general election.” The commission, on their own accord, proceeded to draft an entirely new constitution, which was presented to the state legislature for further debate and modification. The legislature also held public hearings throughout the state during where citizens could offer comments on the proposed document. In early 1970, the legislature agreed, by a two-thirds vote in each house, to put the new constitution before voters at the November general election. 

The proposed constitution drew strong opposition because it had not followed either method for constitutional change prescribed in Article XX. A taxpayer suit was filed to bar the revised constitution from being presented to voters. Ultimately, the Idaho Supreme Court held that the revision process was constitutional. The high court reasoned that if it were to hold that constitutional revisions may only be accomplished through a convention, the legislature could frustrate the will of the people by refusing to call one. According to the court, because the Idaho Constitution’s Declaration of Rights protects the right of the people to “alter, reform or abolish [government] whenever they may deem it necessary,” such a restriction on revising the constitution “is contrary to the fundamental concept of our republican and representative form of government wherein the legislative branch of government is elected by the people to represent them and put forward their desires and needs in the form of legislative action.”

Despite making it to the ballot in the November 1970 election, the new constitution was soundly rejected by voters. There have not been any serious attempts to rewrite the constitution since then.

East Asian Suffrage and Right to Hold Office

In 1943, President Franklin D. Roosevelt repealed the Chinese Exclusion Acts, thus making Chinese immigrants eligible to become naturalized U.S. citizens. However, like the persistence of the prohibition on Native American suffrage, the voter prohibition against naturalized citizens of Chinese or “Mongol descent” remained in the Idaho Constitution long after federal law had changed.

By 1962, "Idaho [was] the only state with such discrimination against any naturalized citizen, and the Idaho State Legislature unanimously recommended that [the amendment] be placed before the voters." This was despite, or maybe because, Chinese, Japanese, and other East Asian immigrants historically made up a significant portion of Idaho’s population. In fact, the earlier women’s suffrage movement in Idaho was, in part, organized around anti-Chinese sentiment since Chinese men born in the United States were eligible to vote before the 1896 amendment granting women the right to vote.

With the passage of the 1962 amendment, the Idaho Constitution’s outdated language prohibiting naturalized East Asian citizens from voting was excised.

Gubernatorial Re-Election

Under a 1944 amendment to the Idaho Constitution, governors could not succeed themselves. However, Governor Robert E. Smylie successfully pushed for another amendment to the constitution to lift this limit. Although Governor Smylie rejected this characterization of events, some have suggested that he re-opened Lewis-Clark State College as part of a deal to secure the legislative votes necessary to get the amendment before voters. Governor Smylie was elected for two more consecutive terms before being defeated in the 1966 primary election.

Of note, the statutory implementation of the 1944 amendment prohibiting consecutive gubernatorial terms was not officially repealed until 1965, after Governor Smylie had already been reelected twice.

Native Suffrage and Right to Hold Office

Although the Snyder Act of 1924 extended citizenship and the right to vote to all Native Americans born in the United States, many states continued to have provisions in their constitutions prohibiting Native Americans from voting. Idaho was one such state, until 1950 when Idahoans ratified an amendment striking the outdated prohibition from the text of the Idaho Constitution.

Although the amendment removed Native Americans from the list of individuals who were prohibited from voting, holding office, or serving on juries, it fell short of removing the language restricting the voting rights of naturalized East Asian immigrants and Mormons. Like the language prohibiting Native Americans from voting, the language prohibiting naturalized East Asian immigrants and Mormons remained in the constitution even after they were no longer enforceable.

For more information about the East Asian right to vote, see 1962. For more information about the Mormon right to vote, see 1982.

Creating the Board of Pardons

Before 1946, the power of the pardon was vested in a three-member board consisting of the governor, the attorney general, and the secretary of state. A 1946 amendment to the Constitution abolished the ex officio board and authorized the legislature to create a board to grant pardons. The new board (the Idaho Commission of Pardons and Parole) currently consists of seven members (with a maximum of four from any one political party), all of whom are appointed to three-year terms by the governor with the advice and consent of the senate. The governor may remove any member at will.

The constitutional provision mandates that pardons may only be granted after an open hearing, notice of which must be circulated in a newspaper at least four weeks in advance. The legislature has also enacted a law specifying that for certain classes of serious crimes that carry a maximum sentence of death or life imprisonment, the commission’s decision operates as a recommendation to the governor, which he or she must approve before a pardon becomes effective. The governor is also authorized by the provision to grant temporary respites or reprieves for convictions of state-level offenses, which are reviewed by the commission during its next session.

Executive Officer Terms and Gubernatorial Term Limit

Under the original Idaho Constitution, all executive officers served two-year terms without a term limit. However, in 1944, the Constitution was amended to extend the terms of executive officers to four years. This amendment also introduced a restriction on gubernatorial terms: the governor could not succeed himself in office. This meant that, while the governor could serve more than one term, they could not be successive.

The Idaho Supreme Court had previously struck down a constitutional amendment, adopted in 1928, that was intended to extend executive terms to four years. The court held that question presented to voters contradicted the actual language of the amendment: While the amendment’s language fixed the terms of executive officers at four years, the ballot question instead left the actual terms of those officers undetermined but subject to a four-year upper limit.

To learn more about gubernatorial term limits, see 1956.

Nonpartisan Judicial Elections

In 1934, voters approved an amendment to add a new section to Article VI, providing for nonpartisan judicial elections. Following this amendment, judicial candidates could not be nominated or endorsed by a political party, appear on a party ticket, or list a party affiliation on the ballot. Functionally, adding this provision did not alter the manner of judicial selection in Idaho, as an existing statute already called for nonpartisan judicial elections. However, constitutionalizing the nonpartisan requirement aimed to ensure the continued independence and accountability of elected judges.

Supreme Court Membership and Terms 

In 1920, Idahoans voted to increase the number of Idaho Supreme Court justices from three to five. The legislature proposed this amendment in response to an increase of cases being brought in state court and a backlog of Idaho Supreme Court cases. The legislature surfaced concerns that the “congested condition of the supreme court…practically leads to a denial of justice in many cases by reason of delay.” The Idaho Supreme Court remains a five-justice court to this day, with each justice serving a term of six years. In addition to increasing the number of judges, the amendment also continued the system of staggered terms by providing that one of the new justices would serve an initial term of four years and the other for six.

Initiative and Referendum

The Idaho Constitution did not originally include the initiative and referendum power. Instead, the power was added by amendment during the Progressive Era, at the same time other states—including all of Idaho’s neighbors—were providing for direct democracy. However, even though Idaho voters ratified the amendments in 1912, it would take more than two decades before Idahoans were able to exercise these rights. 

The amendments adopting the initiative and referendum failed to specify the mechanics by which the people could initiate a law or respond to a referendum. Instead, the amendment gave the legislature the authority to set the procedures by which an initiative or referendum measure would qualify for the ballot and be approved, leaving Idahoans unable to put the initiative and referendum to use until such legislation was passed and signed into law. In 1915, the legislature passed an implementing bill, but Governor Moses Alexander vetoed it, calling the requirements unreasonable. It took until 1933 for the legislature to pass and the governor to sign a bill establishing the initiative or referendum process. The first initiative was placed on the ballot and approved five years later in 1938, establishing the Idaho Fish and Game Commission.

For the subsequent amendment to the initiative provision, see 1980.

Recall

In addition to adopting the initiative and referendum power, Idaho voters also approved a constitutional amendment giving Idahoans the power to recall all elected officials, except judicial officers. This includes statewide officers, such as the governor and secretary of state, and local officers, such as county commissioners and mayors. Idaho was one of the first states to adopt the recall power, following Oregon and Michigan, which granted that power to voters in 1908.

Under the current statutory regime, anyone seeking to force a recall must first draft and circulate a recall petition to obtain the required number of registered voters’ signatures. If a petition meets the signature requirements, a special recall election is held. At this election, the number of votes in favor of recall must equal or exceed the number of votes cast in favor of that elected official at the original election. If the official holding the elected office was appointed, then a bare majority of votes is sufficient for recalling that official. If the official is successfully recalled, the resulting vacancy will be filled in the usual manner for filling that office’s vacancy.

Women’s Suffrage

24 years before women around the nation were granted the right to vote by the ratification of the 19th Amendment to the U.S. Constitution, Idaho women had already won the right to vote. This was the result of a decades-long campaign to expand the franchise that culminated in the passage of a state constitutional amendment in 1896.

Even before Idaho became a state, there were already efforts to extend suffrage to women. In 1870, Representative Joseph William Morgan proposed a bill to give women the right to vote. He argued that women “ranked as a person, a citizen, and as such, being affected by the laws of the country, it was in accordance with democratic teachings that she be allowed a voice in the making of those laws. That government derived its validity and just power from the consent of the governed—that is, all who were governed.” The bill ultimately failed in a tied vote.

The issue of women’s suffrage was brought up twice more before the territorial legislature, but both times, efforts to extend the franchise failed. When Idahoans ultimately enshrined women’s right to vote in their state constitution in 1896, Idaho became the fourth state in the country to do so and the first to do so by constitutional amendment.