Unconstitutional constitutional amendment

The Idaho legislature is considering HJR 4, which would amend the constitution to require a two thirds super majority for localities to impose local option taxes. Since the legislature already has to power to give cities and counties the ability to impose local option taxes, the amendment is not necessary to allow such.

Opponents argue that the amendment is really a poison pill that will prevent the Treasure Valley from imposing a local option sales tax to try to fix transportation problems. Proponents say the amendment is the only way that localities will be allowed to levy the local option tax because it is the only way it will pass the legislature. That is, opponents of allowing localities to use the local option tax will vote against it unless it’s virtually impossible to impose the tax.

Let’s have a closer look at this. First off, the amendment is to read “The legislature may authorize counties or cities to levy a sales and use tax within their jurisdictions.” (emphasis added) So this doesn’t give localities the ability to levy the taxes. They will still be dependant on the legislature allowing them to do so, something the legislature can already do.

Even worse, in my view, is Section 2 of HJR 4. This section says

“The question to be submitted to the electors of the State of Idaho at the next general election shall be as follows:
"Shall Article VII, of the Constitution of the State of Idaho be amended by the addition of a new Section 19, Article VII, to allow the Legislature to authorize counties or cities to levy a sales and use tax within their jurisdictions, …” (emphasis added).

This is clearly misleading. It implies that the legislature cannot currently authorize such a tax, which is incorrect. Not only is it misleading, it’s probably unconstitutional.

In Van Valkenburgh v. Citizens for Term Limits, the Idaho Supreme Court held that misleading and unnecessary statements on a ballot are unconstitutional. I’m not going to do a full analysis here, but this quote gives you the flavor.

Thus, the statute creates the very real possibility of state-sponsored, misleading information appearing on the ballot. Finally, allowing a state official to place a particular political message on the ballot, and to determine the circumstances under which such message should be placed, appears to be in conflict with Article I, § 19 of the Idaho Constitution.

The Court also wrote

The information the State seeks to make available to the voters is easily obtainable through a variety of other sources, namely media sources and the candidate's own voter information materials. The statute cannot be said to be necessary to provide that information to voters.

Here the ballot statement is very close to the wording of the amendment, so if you can understand the statement you can understand the amendment and the statement is unnecessary.

Risch and the legislature did a similar trick when they had the voters affirm their bogus property tax relief. The ballot question then was

Should the State of Idaho keep the property tax relief adopted in August 2006, reducing property taxes by approximately $260 million and protecting funding for public schools by keeping the sales tax at 6%?

Since this was a question to be voted on and not an explanatory statement, it probably didn’t violate the Van Valkenburgh case. Still, it’s an incredibly dishonest and misleading statement, and the legislature ought to be called on this type of stuff. I’m hoping someone files suit over the misleading statement on HJR 4, if it ends up passing.