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U.S. Constitution Training › The Idaho Constitution: How Idaho's Own Charter Really Works

Lesson 6 of 10 · about 17 minutes

The People's Reserved Power

You'll be able to

  • Explain what Article III, section 1 reserves to the people and what it leaves to the Legislature
  • Summarize the holdings of Reclaim Idaho v. Denney (2021) and their effect on signature rules
  • Distinguish an initiative statute from a constitutional amendment and apply the equal footing rule
  • List the steps and deadlines for qualifying a statewide initiative under Title 34, Chapter 18

Start here: the short version

  • Since 1912, Article III, section 1 has reserved two powers to the people: the initiative (proposing and passing laws at the polls "independent of the legislature") and the referendum (approving or rejecting laws the Legislature passed).
  • The Legislature sets the "conditions" and "manner." To qualify today, a statewide petition needs valid signatures from 6 percent of registered voters statewide, including 6 percent in at least 18 of Idaho's 35 legislative districts. For 2026 that meant 70,725 signatures.
  • In Reclaim Idaho v. Denney (2021), the Idaho Supreme Court held that these are fundamental rights, struck down a law requiring signatures from all 35 districts, and struck a rule delaying every initiative to July 1 of the next year.
  • An initiative is an ordinary statute. The Legislature can amend or repeal it, and it cannot do what the Constitution forbids the Legislature to do. Idaho voters cannot amend the Constitution by initiative.
  • On November 3, 2026, voters decide HJR 4, a constitutional amendment that would give only the Legislature power to legalize marijuana, narcotics or other psychoactive substances, which would take that subject off the table for future initiatives.

Most of the Idaho Constitution tells government what it may and may not do. Article III, section 1 is different. It keeps a share of lawmaking power with the voters themselves. For more than a century, Idahoans have used it to set term limits, expand Medicaid, repeal education laws and try to change how primaries work, and the Legislature has repeatedly changed the rules for how they may use it.

This lesson explains the constitutional text, the long tug-of-war over signature rules, the 2021 Supreme Court decision that now governs the field, what an initiative can and cannot do, and how the measures on the 2026 ballot fit in. It ends with step-by-step guides to qualifying a measure and reading a petition before you sign one.

What the Constitution reserves

The people reserve to themselves the power to approve or reject at the polls any act or measure passed by the legislature. This power is known as the referendum, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, demand a referendum vote on any act or measure passed by the legislature and cause the same to be submitted to a vote of the people for their approval or rejection.

The people reserve to themselves the power to propose laws, and enact the same at the polls independent of the legislature. This power is known as the initiative, and legal voters may, under such conditions and in such manner as may be provided by acts of the legislature, initiate any desired legislation and cause the same to be submitted to the vote of the people at a general election for their approval or rejection.

Idaho Const. art. III, sec. 1

Three phrases do most of the work:

  • "The people reserve to themselves." The power is not a gift from the Legislature. The people kept it when they handed legislative power to the Senate and House.
  • "Independent of the legislature." Initiatives go to the voters without legislative approval.
  • "Under such conditions and in such manner as may be provided by acts of the legislature." The Legislature writes the procedures. Most fights are over how far that authority goes.

The Legislature proposed these paragraphs in 1911 and voters ratified them on November 5, 1912. As adopted, the initiative paragraph also required an approving vote equal to a majority of all votes cast for governor at that election; a 1980 amendment deleted that clause, and the Attorney General's office has described it as the only change to the initiative and referendum text since 1912 (Attorney General certificate of review, April 29, 2021). Today a measure passes with a simple majority of the votes cast on it (Idaho Code 34-1811).

What the people did not reserve is the power to amend the Constitution. Under Article XX, section 1, amendments are proposed only by a two-thirds vote of each house of the Legislature and then ratified by voters. Some states allow citizen-initiated constitutional amendments. Idaho does not. Every Idaho initiative is a statute.

A century of tug-of-war over the rules

Because the power is not self-executing, nothing happened until the Legislature wrote procedures. The Idaho Supreme Court laid out the history in its 2021 Reclaim Idaho opinion:

YearWhat happened
1915Legislature passes a procedure requiring signatures from 15 percent of voters in every county for initiatives (10 percent for referenda), witnessed by a judge or state official. Governor Moses Alexander vetoes it as "fatal" to the new rights. No law passes for 18 years.
1933First working law: signatures equal to 10 percent of the votes for governor, no geographic requirement. It lasts until 1997; 24 initiatives and three referenda qualify under it.
1984Legislature tries to double the requirement to 20 percent. Governor John Evans vetoes it.
1997After voters passed term limits by initiative in 1994, the Legislature switches to 6 percent of registered voters and adds a requirement of 6 percent in 22 of 44 counties.
2003A federal appeals court strikes the county requirement because Idaho counties differ so much in population (Idaho Coalition United for Bears v. Cenarrusa, 342 F.3d 1073 (9th Cir. 2003)).
2013After voters repealed three education laws by referendum in 2012, the Legislature requires 6 percent in at least 18 of 35 legislative districts, which are roughly equal in population.
2018Two initiatives qualify. Medicaid expansion, organized by Reclaim Idaho, passes with 60.6 percent. A historical horse racing measure fails with 46.6 percent.
2019Legislature passes bills requiring 10 percent in 32 of 35 districts within 180 days. Governor Brad Little vetoes them.
2020Legislature amends Idaho Code 34-1813 so no initiative can take effect before July 1 of the year after the vote.
2021Senate Bill 1110 requires 6 percent in all 35 districts, with an emergency clause. Little signs it while voicing constitutional doubts.

Source for the table: Reclaim Idaho v. Denney, 169 Idaho 406 (2021), background section.

Example: Reclaim Idaho v. Denney (2021)

Reclaim Idaho, then gathering signatures for a school funding initiative, and a second group challenging SB 1110 by referendum asked the Idaho Supreme Court to strike both the 35-district rule and the July 1 effective-date rule. The Secretary of State, represented by the Attorney General, and the Legislature, with its own lawyers, defended the laws as a valid use of the Legislature's power over "conditions" and "manner," and argued the question was political and not for courts.

On August 23, 2021, the court ruled for the challengers. Writing for the majority, Justice Moeller held:

  • The court could decide it. The challenge did not raise a purely political question, so it fell within the court's duty to rule on constitutionality.
  • These are fundamental rights. Given the language the people used in 1912, "we conclude these powers are fundamental rights." The Legislature can define the process, but a law that effectively prevents people from using these rights gets strict scrutiny: the state must show a compelling interest and a narrowly tailored law.
  • SB 1110 failed. The state did not show a compelling interest, and even if it had, the 35-district rule was not narrowly tailored. The court restored the earlier law: 6 percent statewide and 6 percent in at least 18 districts.
  • The July 1 rule failed too. Because the people may enact laws "independent of the legislature," initiative drafters may set their own effective dates, subject to Article III, section 22, as the Legislature can for its own bills.

All five justices agreed SB 1110 was unconstitutional. Justice Brody would have used an older "reasonable and workable" standard from Dredge Mining Control-Yes!, Inc. v. Cenarrusa (1968) instead of strict scrutiny. The court also awarded attorney fees against the Secretary of State and the Legislature.

One practical warning. The printed Idaho Code on the Legislature's website still shows the struck language: 34-1805(2) still says "each of the thirty-five (35) legislative districts," and 34-1813(2)(a) still has the July 1 rule. A court ruling does not rewrite the printed code. The Secretary of State applies the 18-district rule (VoteIdaho: Initiatives and Amendments). This is a good reason never to rely on statute text alone without checking for court decisions.

What an initiative can and cannot do

It stands on "equal footing" with legislation

The Idaho Supreme Court has long held that once passed, an initiative law stands on "equal footing" with laws passed by the Legislature. It reaffirmed that rule in Westerberg v. Andrus, 114 Idaho 401 (1988), and again in Reclaim Idaho. Equal footing cuts both ways. The Legislature may amend or repeal a voter-passed law the same way it amends any statute. And the people can use an initiative to do anything the Legislature could do by statute.

It cannot do what the Legislature cannot do

In Westerberg, the court also held that the people could not create a state lottery by initiative while the Constitution barred the Legislature from authorizing one, as the Attorney General's office summarized in its 2021 review (AG certificate, April 29, 2021). Idaho later amended the Constitution to permit a state lottery, as the current Article III, section 20 shows. The principle matters for 2026: when the Constitution limits lawmaking on a subject, the limit reaches initiatives too.

It must be legislative

The court has said "If a subject is legislative in nature, it is appropriate for action by initiative," which also means purely administrative acts are not (City of Boise v. Keep the Commandments Coalition, 143 Idaho 254 (2006), quoted in the AG's 2021 certificate). Whether the single-subject rule of Article III, section 16 applies to initiatives is unsettled; in 2024 the Supreme Court declined to consider that claim against an initiative that had not yet passed (Boise State Public Radio).

Myth: Once voters pass an initiative, the Legislature cannot touch it

False in Idaho. Under the "equal footing" rule the Legislature can amend or repeal a voter-passed statute in its next session, by the same majority votes it uses for any bill, and the governor can sign or veto that change. That is exactly why the 2020 July 1 rule mattered: it would have given lawmakers a full session to change any initiative before it took effect, and the Supreme Court struck it in 2021. Before the 2024 vote on Proposition 1, House leaders said publicly they might amend or repeal it if it passed (Idaho Capital Sun). The real protection for an initiative is political: legislators who override a recent majority vote answer to the same voters at the next election. Only a constitutional amendment, which Idaho voters cannot propose by initiative, is beyond ordinary legislative change.

Recent tests of the reserved power

Proposition 1 (2024): open primaries

Idahoans for Open Primaries qualified an initiative to replace closed party primaries with a single top-four primary and use ranked-choice voting in general elections. The fight began before signatures were gathered. In 2023 the Supreme Court unanimously rejected the Attorney General's ballot titles, finding that wording such as "nonparty blanket primary" did not substantially comply with the law, and ordered a rewrite (Idaho Capital Sun; Idahoans for Open Primaries v. Labrador, 172 Idaho 466 (2023)). In 2024, after the measure qualified, Attorney General Labrador asked the court to keep it off the ballot over alleged deceptive signature gathering. The court dismissed that petition unanimously on August 13, 2024, saying the Secretary of State must certify a qualified measure unless a judicial officer first finds signatures void. On November 5, 2024, voters rejected Proposition 1, with roughly 70 percent voting no (Idaho Capital Sun).

The 2025 session

Two House bills introduced in 2025 would have changed the rules again. House Bill 2 would have required 60 percent approval for a statewide initiative to pass. House Bill 85 would have let the governor veto certain voter-approved initiatives. Both were printed and referred to the House State Affairs Committee, and their bill histories show no further action. The measure that did pass was a constitutional amendment: House Joint Resolution 4, adopted 58 to 10 in the House on March 5, 2025 and 29 to 6 in the Senate on March 11, 2025.

HJR 4 on the November 3, 2026 ballot

HJR 4 would add a new subsection to Article III, section 26, which now deals only with liquor:

(2) Effective immediately upon adoption by the voters of Idaho, only the legislature of the state of Idaho shall have power and authority to legalize the growing, producing, manufacturing, transporting, selling, delivering, dispensing, administering, prescribing, distributing, possessing, or using of marijuana, narcotics, or other psychoactive substances.

House Joint Resolution 4 (2025), as printed

The official 2026 voter pamphlet (page 4) states the effect of each vote in the Legislative Council's words: "A YES vote would give the Legislature exclusive authority to legalize marijuana, narcotics, or other psychoactive substances in the State of Idaho," and "A NO vote would make no change to Idaho's Constitution, which currently allows changes to Idaho's controlled substances laws using the initiative process." The Secretary of State's Initiatives and Amendments web page summarizes it more directly: a yes vote would give only the Legislature that power and remove citizens' ability to initiate statutes legalizing these substances; a no vote keeps that citizen initiative power (VoteIdaho). The web summary is not the ballot text, so name your source when quoting either. Legally, it works through the Westerberg principle: a constitutional limit on who may legislate on a subject would bind initiatives too. It needs a simple majority to pass (Lesson 9 covers how amendment votes are counted).

The 2026 initiatives

One citizen initiative qualified for the 2026 ballot: the Reproductive Freedom and Privacy Act, which appears as Proposition One. Its sponsors submitted 75,478 signatures across 20 legislative districts, and the Secretary of State announced its qualification on July 14, 2026 (Secretary of State announcement). The Idaho Medical Cannabis Act did not qualify; county officials certified at most 58,024 signatures, short of the 70,725 required, and it met the 6 percent mark in 13 districts, not 18 (Idaho Capital Sun).

Proposition One also shows how much litigation now surrounds the paperwork. In 2025 the Supreme Court ordered revisions to its short ballot title and fiscal impact statement (Idahoans United for Women and Families v. Labrador, 175 Idaho 708 (2025)). In Idahoans United for Women and Families v. McGrane, Docket No. 54406-2026, the court ruled in an opinion issued September 4, 2026, and replaced by a substitute opinion filed September 6, 2026: it ordered the Attorney General and Secretary of State to rewrite the "yes" and "no" statements on the ballot, then approved the revised statements 4 to 1 (substitute opinion, Sept. 6, 2026). Those rulings concerned whether the ballot language followed the law, not the merits of the measure.

The referendum

A referendum lets voters reject a law the Legislature passed. The petition needs the same signature threshold as an initiative (34-1805), and it must be filed with the Secretary of State within 60 days after the session that passed the law adjourns. The vote happens at the next general election, and a referred law takes effect only if a majority approves it (Idaho Code 34-1803). Idaho voters used this in 2012 to repeal three education laws. One important limit: a law with an emergency clause takes effect immediately, and the Supreme Court held in Idaho State AFL-CIO v. Leroy, 110 Idaho 691 (1986), that a referendum petition cannot stop it from taking effect; it stays in force until the vote.

Local governments have their own initiative and referendum procedures in the same chapter of the code, and Article VI, section 6 separately allows voters to recall any public officer except judges.

How to: get a statewide initiative on the ballot

  1. Draft the measure as a complete statute. Remember it cannot amend the Constitution or do anything the Constitution forbids the Legislature to do.
  2. File it with the Secretary of State with the signatures of at least 20 qualified electors and a proposed funding source for the cost of implementing it (34-1804).
  3. Attorney General review. Within 20 working days the AG reviews the measure and sends advisory recommendations; you may accept or reject them. The AG then issues a certificate of review (34-1809).
  4. Fiscal impact statement. The Division of Financial Management prepares one within 20 working days (34-1812).
  5. Ballot titles. Within 15 working days of the certificate, file the final measure for ballot titles. The AG has 10 working days to write a short title of up to 20 words and a long title of up to 200 words. Anyone dissatisfied may appeal to the Supreme Court (34-1809).
  6. Circulate. Signature gathering starts when you receive both the fiscal impact statement and the ballot title, and runs up to 18 months or until April 30 of the election year, whichever comes first (34-1802). Circulators must be Idaho residents at least 18; paid circulators must disclose payment and wear a "paid petition circulator" badge; each sheet holds signers from only one county and no more than 20 signatures (34-1807, 34-1804).
  7. Hit both thresholds. Valid signatures from 6 percent of registered voters statewide and 6 percent in at least 18 of 35 legislative districts. Plan a cushion: clerks strike invalid signatures, and signers may remove their names before verification (34-1803B).
  8. Turn in to county clerks by the close of business on May 1 of the election year. Clerks have 60 days to verify (34-1802).
  9. File with the Secretary of State at least four months before the election (34-1802).
  10. Ballot and pamphlet. The measure gets a proposition number, a "yes" and "no" statement prepared jointly by the AG and Secretary of State (34-1810), and space in the voters' pamphlet mailed to every household (34-1812C).

How to: read a petition before you sign it

  1. Read the short ballot title on the cover and the full text of the measure, which must be attached to every signature sheet (34-1804).
  2. Ask for the fiscal impact statement summary and the sponsor's funding source information. The circulator must offer them before you sign (34-1812).
  3. Ask whether the circulator is paid and by whom. Paid circulators must tell you and wear a badge (34-1807).
  4. Sign only on a sheet for your own county, with the name and address on your voter registration.
  5. If you change your mind, you can cross out your own signature before the petition goes to the clerk, or file a signed removal request with the county clerk before verification (34-1803B).

If you report on this

Get the numbers from the Secretary of State and county clerks, not campaigns: total valid signatures, the statewide threshold for that cycle, and how many districts cleared 6 percent. Do not quote 34-1805 as printed without noting that the Supreme Court struck the 35-district version in 2021. Distinguish an initiative (a statute the Legislature can amend) from a constitutional amendment (which only the Legislature can propose and only voters can ratify). When covering HJR 4, describe both the yes and no effects in neutral terms and quote the resolution's text. When ballot titles or yes/no statements are litigated, explain that courts are judging compliance with the statute, not the measure's merits. And when a legislator says an initiative will be changed after it passes, explain the equal footing rule so readers know that is legal.

Go further

Check yourself

1. What signature requirement applies to a statewide Idaho initiative after Reclaim Idaho v. Denney?

2. What standard of review did the Reclaim Idaho majority apply to laws that effectively prevent use of the initiative and referendum?

3. Can the Idaho Legislature amend or repeal a law passed by initiative?

4. Why could Idaho voters not create a state lottery by initiative in Westerberg v. Andrus (1988)?

5. What would a yes vote on HJR 4 do, according to the Secretary of State's Initiatives and Amendments web page?

6. Within what period after the Legislature adjourns must a referendum petition be filed with the Secretary of State?

Terms in this lesson

Initiative
The people's reserved power to propose a law and enact it at the polls independent of the Legislature. In Idaho it creates a statute, not a constitutional amendment.
Referendum
The people's reserved power to approve or reject at the polls a law the Legislature passed. Petitions are due within 60 days after the session adjourns.
Geographic distribution requirement
A rule that signatures come from across the state. Idaho currently requires 6 percent of registered voters in at least 18 of 35 legislative districts, plus 6 percent statewide.
Strict scrutiny
The most demanding standard of court review. Under Reclaim Idaho, a law that effectively prevents use of the initiative or referendum must serve a compelling interest and be narrowly tailored.
Equal footing
The rule that a voter-passed initiative has the same status as a law passed by the Legislature, so the Legislature may amend or repeal it.
Ballot title
The short title (up to 20 words) and long title (up to 200 words) the Attorney General writes for a measure; challengers may appeal to the Idaho Supreme Court.

Verify independently

Every case, citation, vote count and quotation in this lesson was checked against a primary or reliable source in October 2026, but constitutions are amended, opinions are withdrawn and links move. Check the official text and the opinion itself before you rely on anything here.

Sources