HJR 4: Who Should Decide Idaho’s Drug Laws?

During the 2025 legislative session, Idaho lawmakers passed House Joint Resolution 4, which places a question on our ballot this November:

Shall Section 26, Article III of the Constitution of the State of Idaho be amended to provide that only the Idaho Legislature 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?

If a majority of voters say “yes,” then our state constitution will be amended to reserve the power to legalize certain drugs to the Legislature alone. A “no” vote would retain the ability of citizens to circulate initiatives regarding legalization, as they did earlier this year.

HJR4 passed on a nearly party-line vote, with Rep. Rob Beiswenger being the only Republican to vote no.

The question before you as a voter is not necessarily whether marijuana or other drugs should be legalized, but rather who should have the authority to make that decision in the future. Contrary to some claims being made, HJR4 would not give the Legislature any additional power that it does not currently have—lawmakers can already pass laws related to the legal status of drugs—rather it would take this issue out of the purview of the citizen initiative.

At least ten marijuana-related initiatives have been proposed since 2010, with several coming close to reaching the signature threshold needed to appear on the ballot. This year’s initiative to allow medical marijuana use achieved more than 80% of the necessary signatures and met the 6% voter requirement in 13 legislative districts, rather than the 18 necessary to qualify.

Supporters of HJR4 argue that restricting drug legalization to the Legislature will stop the flow of out-of-state money seeking to impose legalization on Idaho via the initiative process. Opponents say that restricting the right of the people to use the initiative process on any subject is a bridge too far.

Fred Birnbaum wrote an article for the Idaho Freedom Foundation (IFF) last week arguing in favor of HJR4, pointing out that the Legislature has already passed laws preempting local ordinances regarding guns, minimum wage, and plastic grocery bags:

It is appropriate because it is the role of the Legislature to promulgate new laws, including laws that preempt local governments. The Legislature has the power now to regulate drugs, why does it need the sole power? The legislature has already preempted local governments from regulating guns, imposing a minimum wage, and banning plastic bags. This constitutional amendment would serve a similar purpose by preventing local units of government (for example, cities) from legalizing drugs. It simply doesn’t make sense to have a patchwork of laws on drugs.

The amendment would also prohibit the use of the initiative to repeal government prohibitions enacted by the legislature on drugs. Removing the use of the initiative moves Idaho away from the costly and dangerous direct democracy approach to this complex political issue.

The issue of direct democracy is central to this ballot question. The citizen initiative was not originally part of Idaho’s constitution, ratified in 1890 as part of our admission to the Union. Yet these were the early years of the Progressive Era, in which reformers sought to give people more power to check their elected governments. The Seventeenth Amendment to the U.S. Constitution was ratified in 1913, moving the power to select U.S. senators away from state legislatures and directly to the people. In 1912, Idaho voters approved amendments to the state constitution authorizing citizen initiatives and referendums, but they were not fully implemented until 1933. Five years later, Idahoans successfully used the initiative process to establish the Fish and Game Commission.

The original conception of Idaho’s state government, like the federal government structure that emerged from the Philadelphia Convention of 1787, was that of a republic, in which citizens delegate legislative, executive, and judicial powers to elected officials. Our Founding Fathers understood that mobs are fickle, and therefore direct democracy was dangerous, as Birnbaum said. They balanced their belief in the sovereignty of the people with the need to resist mob rule by separating legislative power between a Senate that represented the states and a House of Representatives that represented the people. Only by working together could these two bodies pass laws for the republic.

Nevertheless, modern courts have held that the right of citizens to create laws via initiatives is “fundamental” to our governing structure. The 1912 amendment modified the original state constitution by giving the people direct access to lawmaking authority:

The people reserve to themselves the power to propose laws, and enact the same at the polls independent of the legislature.

Neither the Legislature, with powers delegated by the state constitution, nor the people, reserving certain powers to themselves, can necessarily supersede the other. The people have the right to overturn laws passed by the Legislature via referendum, but the Legislature has the power to repeal laws passed via citizen initiative. Indeed, many Republican legislators have pledged to overturn Proposition 1, which would legalize abortion in Idaho, should it pass this November.

In 1994, voters approved Proposition 2, which established term limits for elected officials at the federal, state, county, municipal, and school district levels. A Supreme Court decision in 1995 established that states cannot place more onerous limits on federal elected officials than those already in the U.S. Constitution, but voters affirmed term limits for state, county, municipal, and school officials in a 1998 advisory vote. In 2001, the Idaho Supreme Court upheld the law, ruling that term limits did not violate the state constitution.

However, in 2002, the Legislature passed House Bill 425, which repealed the term limits law. Proponents of the bill argued that term limits interfered with the right of voters to choose their own representatives, while those from rural districts argued that recruiting potential officeholders was sometimes difficult.

Gov. Dirk Kempthorne vetoed the bill, but both chambers successfully overrode the veto, with more than two-thirds voting in favor. Later that year, two voters filed suit asking the Idaho Supreme Court to declare the law unconstitutional. One had filed to run for an Ada County commissioner seat held by an incumbent who faced disqualification under the term limits law. However, the court ruled 5-0 against the petitioners, with Justice Gerald Schroeder writing that the Legislature not only had the authority to repeal laws passed via citizen initiative, as initially decided in Luker v. Curtis (1943), but also had the authority to use an emergency declaration to implement that repeal immediately.

Supporters of term limits were not done yet. They gathered enough signatures to put H425 on the ballot as a referendum, but the repeal narrowly survived, 50.23% to 49.77%.

It seems unlikely that anyone involved in passing the bill paid much of a political cost. Bruce Newcomb, the floor sponsor of H425, was already Speaker of the House and would remain in that position until 2006. Several other current elected officials and prominent political figures were involved in the H425 vote. Those supporting the bill included Gov. Brad Little, House Speaker Mike Moyle, Lt. Gov. Scott Bedke, and U.S. Sen. Jim Risch, as well as Department of Insurance Director Dean Cameron, outgoing U.S. Attorney for the District of Idaho Bart Davis, and former Secretary of State Lawrence Denney. Opposing the measure were Treasurer Julie Ellsworth, former Congressman Bill Sali, former Boise Mayor Dave Bieter, and Steve Smylie, son of former Gov. Robert Smylie, who was in the House at the time.

Following the passage of Medicaid expansion in 2018, the Legislature attempted to raise the threshold for initiatives to qualify for the ballot, requiring a certain number of signatures from all 35 legislative districts rather than just 18. However, the Idaho Supreme Court struck down that law in 2021, stating that the citizen initiative was a fundamental right of the people of Idaho, which meant the court must apply strict scrutiny to any attempt by the Legislature to modify it.

Not counting this year’s Proposition 1 or the 2022 measure to increase taxes to raise spending on public schools, which was withdrawn after a special legislative session rendered it unnecessary, Idahoans have considered 31 ballot questions stemming from citizen initiatives, rejecting 16 and approving 15. However, in recent years, organizations such as Reclaim Idaho have turned the initiative process into a professional operation, training volunteers and signature gatherers to ensure their agenda makes it onto the November ballot. Reclaim Idaho itself was successful in passing Medicaid expansion in 2018, and its system has been used and copied by other left-wing organizations, including the group behind this year’s Proposition 1, which seeks to legalize abortion.

Is that what the early 20th-century progressives envisioned when they amended the constitution to allow for citizen initiatives? The concept of the initiative process assumes that voters have the time, energy, and willingness to fully understand a proposed law before voting. Yet the last few propositions to make the ballot have attracted millions of dollars meant to influence the vote one way or another.

Additionally, bills passed through the legislative process must survive three committee hearings, two floor votes, and the governor’s desk, and can be amended at multiple points to close loopholes or fix potential problems. Initiatives are presented to the public as-is, take it or leave it. With the two marijuana initiatives that gathered signatures this year, there was no opportunity for feedback or debate within the legislative process. Had either one reached the signature threshold, it would have appeared on the ballot as a simple yes-or-no question.

That brings us full circle back to HJR4, in which the Legislature is asking us, the people, to amend the state constitution to reserve questions regarding drug legalization to itself. Obviously, those who support drug legalization oppose this measure, while those who wish to use the initiative process for other issues are concerned that HJR4 might be just the first step toward eliminating it entirely.

Still others worry about potential unintended consequences. Wayne Hoffman, founder and former president of IFF, recently argued that the measure could also eliminate the right of citizens to use the referendum process to repeal laws related to drug legalization:

HJR 4 does not rewrite Section 1. It assigns one slice of that same power — the power to legalize these substances — to the Legislature alone. If “only the legislature” is enough to kill an unnamed initiative, there is no good reason it magically does not also apply to the referendum.

Critics might argue that a referendum does not “legalize” anything. It only blocks a legalization statute from taking effect. That misstates what Idaho’s referendum is. It places the exact bill that was before the Legislature on the ballot and asks the public whether that bill should become law. The people are not grading the Legislature. They are voting yes or no on enactment. A yes or no vote has the exact effect as a yes or no vote had when the bill was before lawmakers in Boise.

Therefore, the words in HJR 4 — “Only the legislature” — do not leave room for that second consideration on whether or how cannabis or other psychoactive substances become legal.

Hoffman also suggested that HJR4 could lead to state-run cannabis stores, similar to how Idaho’s state government maintains monopolies on liquor distribution and gambling through the state lottery:

I sincerely doubt that’s what the lawmakers who put HJR 4 on the ballot have in mind. But they won’t be the ones in charge in two years, or in twenty. If they wanted to ban cannabis permanently, they could have tried to write that. Instead, they wrote a power to legalize and gave it to themselves alone, in the same section that made the state Idaho’s only liquor wholesaler. They’ve left the door open to cannabis sales in Idaho, with state employees at the register.

How you vote on HJR4 will not necessarily be determined by your position on drug legalization itself, but by your opinion regarding the citizen initiative as a whole. Are there certain issues that are too important to be left to the mob? Or is the right of Idaho citizens to make laws outside the Legislature so fundamental that it should not be tampered with?

These are questions about the nature of our republican system of government and popular sovereignty, and it will be fascinating to see where Idaho voters fall on November 3.

Feature image created with ChatGPT.

About Brian Almon

Brian Almon is the Editor of the Gem State Chronicle. He also serves as Chairman of the District 14 Republican Party and is a trustee of the Eagle Public Library Board. He lives with his wife and six children in Eagle.

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