Posts published in “Idaho”

Opinions among close and careful  observers of the Idaho Legislature I know differ on whether the chambers of the Idaho Legislature readily divide into two, three, four or five distinct political parties.

The point behind that observation has a real bearing on some of the most critical decisions Idaho voters will make in this month’s primary election. Bear with me.

On a formal level, each chamber of the Idaho Legislature includes members of two political parties, the Republican (around four-fifths of the total) and the Democratic. But almost no one who watches the legislature thinks it’s that simple, because the super-majority Republicans in each chamber are not one coherent, consistent caucus.

You could say the Republican caucuses split into two: The traditional conservatives, along the line of most Republican caucuses from decades past, on one side; and the more extreme or less willing to compromise group, aligned more with the state Republican Party leadership, sometimes called (in line with the U.S. House of Representatives Republican group) the freedom caucus.

The picture is not quite as clean-cut as that, however. Not all of the House or Senate Republicans fit neatly or consistently into the traditional/freedom framework (I use those descriptors under some protest for lack of something better), and some bounce back and and forth. For that reason some people see a fourth or even fifth group splitting up that overall Republican group.

So while Republicans overall have absolute, dominant control, on any given controversial issue majorities can shift unexpectedly. Sometimes the trad group cobbles together a majority with the in-betweeners, and sometimes the addition of Democratic votes is enough to get to a win. Sometimes the free people get it done, and there have been a few, albeit rare, instances when they have aligned with Democrats to prevail. (A key vote on the University of Idaho deal with the University of Phoenix was one example.)

The point is that the situation is fluid, and what now matters in the vote count of the Idaho Senate and House is not so much how many Republicans there are, but how many of which faction. Issue after issue has risen or fallen on that calculus in recent years.

That is why the Republican primary election this year has become so crucial.

That’s partly because there are so many Republican legislative primary contests, more than usual. More than half of all Republican-held Senate seats (17 out of 28) are being contested, and the same is true in the House (35 out of 59 R seats).

In not all but many of those contests there’s a clear split between the trad/free contenders, some incumbents and some challengers; sometimes candidates position themselves in the middle or as straddlers, and voters will have to step carefully to assess what kind of legislators they will be.

But in many cases the choices are clear. In the Senate District 1 contest, for example, the gap between the two Republicans now in a rematch - more traditional Republican Jim Woodward and the hard core Steve Herndon - couldn't be easier to figure out. You can find other sharp divides in most of the other 35 legislative districts, in both chambers. Some are more subtle.

The net pickup of only a few seats by one faction or the other would be enough to make a difference on a wide range of votes.

You can look back at the most recent legislative session to see how that plays out. There were a string of close votes on important and highly controversial subjects, with wins and losses on both sides. Compared with how it might have looked, had the composition of the Republican caucuses been a little different, this session was much more restrained on a number of budget, education, social and other issues that it might have been.

A few seats shifting from one faction to another within the Republican Party could make a big difference in which legislation succeeds or fails next term. The candidates from these factions have no letters next to their names to help voters discern where they’re coming from.

Voters are going to have to listen and read carefully, and figure that out for themselves.

 

If the early reads on the U.S. Supreme Court are anywhere near right, Idaho’s new abortion law may have a sweeping and deep effect in many states around the country.

More effects than many people even realize, or even can calculate.

Idaho’s law is being challenged in the Supreme Court by federal agencies, which point out that the Emergency Medical Treatment and Active Labor Act of 1986 requires emergency rooms (those which receive Medicare) to provide at least stabilizing medical care for patients who show up. The Idaho law appears to run counter to that, ordering that abortion cannot be part of any medical treatment unless the mother is at clear risk of dying. Abortion is a treatment for a number of medical problems which may not be solvable otherwise, and without which a woman may either die or her body may be severely damaged.

Federal Solicitor General Elizabeth B. Prelogar, described the impact: “Today, doctors in Idaho and the women in Idaho are in an impossible position. If a woman comes to an emergency room facing a grave threat to her health, but she isn’t yet facing death, doctors either have to delay treatment and allow her condition to materially deteriorate or they’re airlifting her out of the state so she can get the emergency care that she needs.”

Idaho is in other words in the process (a number of cases have become public already) of dumping desperately ill patients on other states which will take care of them. Which Idaho won’t.

If a law like Idaho’s were in place in all states, the talk would shift to cover airlifts out of the country entirely.

Prelogar didn’t get into the point that a large portion of Idaho’s obstetricians have exited the state, mostly because of the new law; there was no place in her argument for it, this being a mere practical consideration rather than legal analysis.

But if the Supreme Court does what hearing questioning seemed to suggest - that the Idaho law will be upheld - the result won’t be just singular. It will be a vast array of impacts, as varied as the patients who show up at hospital emergency rooms.

The Supreme Court waded into that point during the hearing, even if the implication was left mostly undrawn. Numerous what-ifs were posed during oral arguments, but the number of potential questions opened by the laws on a practical level could multiply almost to infinity.

Every person’s medical conditions are at least somewhat unique - our bodies are all at least slightly different from each other - which means that pregnancies are all slightly different too. That’s why even a sophisticated algorithm won’t replace a good physician: Conditions aren’t always normal and natural processes (like a pregnancy or any other medical condition) won’t always go according to plan. There’s no good replacement for on-the-spot and in-the-moment judgment.

The same reason an algorithm won’t work in managing every pregnancy is the same reason no law, however well crafted (and many of the nation’s new abortion laws are shoddy) can cover every case. Each pregnancy is its own unique situation, often involving important decisions along the way. Normally, up to now, those critical decisions have been made by the parents or the mother, with help from medical professionals. Many medical conditions (not just, but including pregnancies) require running monitoring and adjustment, and calculation of cost and risk that add up to a series of very personal responses - calculations different people will make in different ways. No one outside that immediate circle can understand all the factors that weigh in every decision.

You can’t call the Supreme Court or the state legislature to cover every contingency, every decision, of which the life-threatening situations are just the most visible part of the iceberg.

The new abortion laws seem to contemplate that you can. The friction between those rules and life in the real world, and discussion about it, is going to grow.

 

In opting not to veto a bill whose rough predecessor he did kill a year earlier, Governor Brad Little has handed to each of the couple million people in Idaho an unusual piece of authority:

To decide what is harmful to children, and thereby possibly deny it to everyone.

This emerges in enactment of House Bill 710, the latest legislation targeting libraries and which was signed on April 10 into law, effective July 1.

The bill is most specific in trying to target anything which seems to relate in any way to sex, or gender or sexual orientation, not just explicitly but also making any kind of reference to “sexual excitement” (try coming up with specific limitations about what’s okay or not there) - but not only that either. It also takes aim at “any other material harmful to minors.”

In principle, an overwhelming majority of people would not want in libraries, or other places where children may go, anything harmful to children.

But here’s where it gets tricky.

What exactly is “harmful” to children?

The bill - the law - doesn't really specify what “harmful” means. In fact, not many people would necessarily agree on what that is. You and I might not. A room full of people in any given Idaho community probably would come up with a wide range of answers.

If any such (indeterminate) materials are given to a child, a large list of people have a legal “cause of action,” meaning they can sue the library; that’s in addition to elected prosecutors and the state attorney general. “Damages” can be awarded to the plaintiffs. If the materials aren’t removed within a specific period, consequences can ensue.

While the “damages” that can be recovered is not massive - $250, far smaller than a year ago - that relates to each challenge. A single book could be challenged any number of times by any number of people, and there’s no particular limit to how many individual books (or other materials) could be challenged by a single person. Sky’s the limit - or, maybe, the limit of the library’s budget.

The uncertainty in all this is reminiscent of some of the recent abortion law exemptions: A physician who guesses wrong about what someone else (a lay juror, for example) may think about what was medically necessary, could mean the difference between keeping or losing one’s medical license or freedom from prison. In the case of the library, every librarian will be put in the position of having to figure out what may be “harmful” and what isn’t.

Consider, for example, Idaho Falls, not a community on the cultural cutting edge but with some variety of people, as its librarian, Robert Wright, told the Idaho Ed News: “We have same-gender families, so we have books that talk about same-gender families. The picture book that shows little Timmy going to school with two dads or two moms, what are the community standards? … Until it’s litigated — and it’ll probably be litigated at some point — we don’t really know where we’re at.”

Where we are at may be a race among some people to find the objectionable in wherever they look, depriving everyone else of the ability to access what they’ve been accustomed to having available to them.

And don’t imagine this affects only children. While many libraries have spaces dedicated to children, few if any in Idaho are “adults only,” meaning that if you want to ensure children won't see, that means no one - whatever their age - will.

This is good legislation for people who hate reading and libraries. People who don’t will have a chance to weigh in come the May primary elections.

 

The idea pops up with some regularity: In Idaho politics, could 2024 turn into another 1990 - or maybe an echo of it?

Idaho Democrats, current and former Idahoans, who recall or know of what happened in 1990, and why, are pondering if some of the conditions might be in place for something similar this year.

Cutting to the chase: Probably not. But there’s a possibility of it, depending on developments between here and November.

For those less attuned to the political history from a quarter century ago, a refresher.

The big topic in the 1990 legislature was abortion, at a time when many Idaho Republicans wanted a frontal challenge to Roe v. Wade. After considering various options, and in the glare of national attention, the legislature passed a bill crafted by the National Right to Life Committee to ban most abortions. Its terms were similar to but not quite as strict as laws now effective in many states (including Idaho). There was widespread understanding that the 1990 law ran afoul of Roe, but its backers hoped the Supreme Court would use it as a lever to reverse the earlier decision (something like what actually happened in 2022).

Governor Cecil Andrus, who often expressed personal opposition to most abortions, received many more comments in opposition to the bill than in favor, and vetoed it. He warned that the state would be on the hook for big legal costs over a bill likely to fail in the courts. And: “The bill is drawn so narrowly that it would punitively and without compassion further harm an Idaho woman who may find herself in the horrible, unthinkable position of confronting a pregnancy that resulted from rape and incest.”

No one was certain what would happen in the Idaho elections in the months ahead: Would Republicans opposed to abortion see their fortunes rise and oust Andrus? Or might it work the other way?

Um, the other way. Andrus won his fourth term in a landslide (68.2% of the vote, way up from about 50% four years earlier). In the state Senate, Republicans lost two critical seats reducing them to a tie with the Democrats. (The Republican lieutenant governor, C.L. “Butch” Otter, broke ties, ensuring continuing GOP control.) The change was bigger in the House, where Republicans went from 64 to 56 seats. Many key legislators, mostly well-established incumbents in solidly Republican districts, behind the abortion bill either were defeated or had close calls.  Republicans lost the first congressional district and the attorney general’s office. It was the best year for Idaho Democrats since 1958.

After that election, in a 1992 reference book, I pondered: “1990 would not have been so favorable for Democrats except that so many voters were talking so much about abortion so much of the year, and used it as a litmus test. Abortion may be back in 1992 if the U.S. Supreme Court overturns the landmark case of Roe v. Wade; but a chastened Idaho legislature may be able to sidestep it by simply not bringing forth abortion bills.”

Of course the Supreme Court didn’t overturn Roe until the year before last, and the Idaho Legislature mostly kept clear of abortion legislation for years to come. Starting in 1992, Idaho moved sharply Republican, where it has stayed since.

Now, Roe has been overturned, and the Idaho Legislature has become more anti-abortion than ever before. So: Might some of what happened in 1990 repeat this year?

The main and short answer is, probably not, in large part because Idaho has changed. If the state was mostly Republican back around 1990, it has become much more so, and much more partisan, since.

Still. This is the first year in many when Idaho Democrats have managed to fill more than half of the legislative ballot slots with candidates. Abortion has made a significant difference in a number of elections in states around the nation, not least in deeply red states.

Keep it in the back of your mind as the campaign season begins.

Idaho House Bill 613 said: “Any person who willfully publishes any notice or advertisement, in any medium, within the state of Idaho for a product or service that is illegal under the laws of the jurisdiction where the product or service is offered, including federal, state, or local laws, is guilty of a misdemeanor.”

That’s one sentence, and on a quick read sounds coherent enough. But is it?

That bill, proposed by Representative Judy Boyle of Midvale, was aimed at curtailing advertising for marijuana-related businesses directed toward Idahoans, where the substance is very much illegal, but located in neighboring states, nearly all of which have legalized cannabis products and services (and in some cases making good money off the Idaho border traffic). The bill passed the House overwhelmingly, 47-22.

But it failed in the Senate, narrowly, 18-16. The senators, apparently, spotted some problems their House colleagues had overlooked. Some are speculative, some obvious; some are clear and some are subtle. Many had little to do with marijuana, which the bill never actually mentioned: It referred only to products and services which are illegal “under the laws of the jurisdiction where the product or service is offered.”

That seems like a drafting flaw, because outside of Idaho - in Washington or Oregon, say - cannabis sales are legal, so a lawyer should be able to argue that advertising in Idaho their products (for sale in those states) would not violate the law at all. Shouldn’t it have referred specifically to items which are illegal in Idaho?

Maybe a court would interpret the bill differently, in which case its application could run much further. Senator Tammy Nichols of Middleton said she liked the intent of the bill, but: “The federal government at any time can make something illegal. Let’s take vitamins or raw milk or something like that, for instance. Now all of a sudden that can’t be advertised, according to what I’m reading in this legislation.”

And Senator Brian Lenney of Nampa similarly warned of “unintended consequences”: “I’m thinking about things like pistol braces or bump stocks or suppressors. … Because we know there’s always arguments around these things.” Well, yes, of course those would be an Idaho legislator’s top concerns. But Nichols’ and Lenney’s objections here at least were conceptually reasonable.

For the sake of argument, though, let’s put aside all that, consider the surface intent of the bill (since in some form it’s likely to be back, maybe rewritten, next year) and ask this: What is a “notice or advertisement” and what does it mean to say it’s published in the state of Idaho?

These are, these days, actually complicated questions, more than it might have been a couple of generations ago. Let’s say an Idahoan crosses over to Ontario, Oregon, snaps a picture of one of that city's pot shops, and posts it on Facebook - which could be taken as providing notice of it. Would that violate the law? If an Idaho newspaper did that (which has actually happened), and published it, would that violate the law?

Suppose a newspaper editorialized - or the writer of a letter to the editor or a tweet on X posted - information about such a business, maybe even quoting a sales price? Would that be legal, and if not, what offending words or information would have to be deleted to comply with Idaho law?

What if someone broadcast the information, over radio or television - or live-streamed it, online? Would a billboard violate the law; or, would it depend on what it said?  What would be permissible and what not? How about printing a flyer? Sending an email?

Is there any way this idea does not run smack into a freedom of speech wall?

Idahoans can take some relief that just enough, barely enough, legislators managed to figure enough of this out, this time, to avoid another constitutional law demolition lawsuit.

This session.

 

In my last column I wrote about the larger than usual number of Democrats running this year for the legislature, which jumped out at me as the most notable aspect of the just-finished candidate filings, but I don’t want to leave Republicans out of the picture. They have lots of candidates too, heading into this year’s primary election.

Their situation is a little different from the Democrats, though. Idaho Republicans normally have filed candidates for not necessarily all but close to all of the partisan seats up for election, passing up few legislative seats even in strongly Democratic areas (meaning, mostly, Boise) and they’re doing that again this year. That sheer comprehensiveness has been one of the elements of their overall success.

What feels a little different this time, at least on the legislative level, is the depth of primary contests involving incumbent legislators.

As a comparison to recent elections, that’s a judgment call rather than a slam dunk because 2022 also saw plenty of primary action among Republican legislative candidates, and notably with incumbents targeted by challengers who frequently ran serious campaigns. By my count, putting aside contests developed where redistricting pitted incumbents against each other, I saw at least four incumbent Republican senators and seven Republican House members lose to challengers four years ago. And those were a small minority of the contests overall involving incumbents. Plenty of other challengers fell short but still scored respectable votes.

In 2022, both Senator Chuck Winder and Representative Mike Moyle, today the leaders of their respective chambers, won their primaries by margins that were slender, in the range of surprising, for such well-established and veteran incumbents. And the many serious contests emerged from all different directions.

While some of these primary contests involved extreme candidates ousting mainstream incumbents (losses for Senators Jim Woodward and Fred Martin, for example) the reverse happened too (Representatives Ron Nate and Chad Christensen, for example). The stories behind these races were widely varied.

And this year?

We appear to be seeing something like more of the same, only maybe a little more of it.

A whole lot of the survivors in 2022 are facing challenges again, sometimes from the same candidates. The District 1 race between Woodward and Scott Herndon, so heated last time, is getting a repeat, as now-challenger Woodward tries to oust now-incumbent Herndon. That could be among the most watchable races in Idaho this year.

Local Republican central committees have started making a practice of censuring legislators whose floor votes they have disagreed with, and most of those legislators have drawn challengers. Representative Lori McCann at Lewiston has two challengers (which from an incumbent’s standpoint usually is better than one). In Idaho Falls, Representative Stephanie Mickelson has two challengers as well; state Senator Kevin Cook has just one.

The other legislator in the Cook-Mickelson district, Wendy Horman, is co-chair of the budget-setting Joint Finance-Appropriations Committee, which presumably made her an almost automatic target for someone. In fact two someones are opposing her in the primary, and one of them, Bryan Smith, is a former congressional candidate and well-known and well-connected figure in the region. That will be another of the hottest races in Idaho this season.

The other JFAC co-chair, Senator C. Scott Grow, has a primary challenger too.

And so, once again, do both Winder and Moyle.

This is happening all over the state, not in just one region. There’s not any single trend line in all this, other than that distinct pieces of the Idaho Republican Party have continued to grow and do battle with each other, and neither has obtained a conclusive dominance over the other. If you look at legislative races (and you can extend the point to major offices as well), both sides have scored significant wins.

Which tends to suggest another split decision in May.

 

Some months ago people at the Idaho Democratic Party said something striking: This year, we will run at least one candidate in every legislative district in Idaho.

In other words, they wouldn’t do what they’ve been doing cycle after after, which is to leave so many Republican nominees unchallenged that the legislature would be conceded to the GOP before the election even was held.

My thought was: Okay, show me.

Turns out they have.

The regular two-week candidate filing window closed on March 15, and the legislative field is mostly set. (A note: Candidates still can drop out, or can file as write-ins for the primary election, so the numbers cited below still could rise or fall a little.)

In contrast to the typical 50 or so candidates Democrats have been fielding (some of those competing against each other in the primary), this year 99 have filed for legislative seats.

Some of those are in fact running against each other in the Democratic primaries. But: When the filing deadline closed, at least one D had filed in all 35 legislative districts. How many years has it been since that last happened? I’m not sure, but I’d guess you have to go back a few decades.

Democrats have filed for 27 of the 35 Senate seats, which means 20 of those candidates will be running in current Republican-held seats.

In the House, where Democrats now hold 11 of 70 seats, D candidates have filed for 55 seats.

For the first time in, what? - a generation? - Idaho Democrats have not conceded the legislature, either chamber of it in fact, immediately after the filing deadline.

I don’t mean to press the point too hard.

Obviously, these currently Republican districts are not going to be easy to win, and it’s entirely possible that Democrats will wind up in November with no more seats than they have now. (If that: In Idaho, presidential election years tend to tilt just a bit more Republican than in off-years.)

We have yet to see how much or how well they campaign, and what kind of campaign money and organization they can put together. Those will not be especially easy tasks either.

But the significance of this candidate recruitment shouldn’t be overlooked.

First, the party’s leaders made what sounded like an awfully daring boast in promising a presence in every district - and they carried through. This is something we haven’t seen for a while among Idaho Democrats.

Second is the fact that Idaho Democrats will be seen this year, locally, in places where they’ve been simply invisible for a long time. Here are some of the home communities of this year’s Idaho Democratic candidates: Spirit Lake, Dalton Gardens, Cottonwood, New Plymouth, Weiser, Emmett, Kuna, Homedale, Kimberly, Paul, Arco, Salmon, Preston, Soda Springs, Driggs, Irwin. I can remember when Democratic candidates (and sometimes winners) were not a rarity in such places, but it’s been a long time.

The fact that other voters in the area will have a human face - rather than a dark myth built out of demonic and perverted constructions - to associate with Democrats, could make some long-range difference.

A quick mention here is also warranted for the Democratic efforts to organize their local county parties. A short time ago, only a few were even thinly organized. Now, according to the state Democratic web site, all 44 counties have a Democratic chair at least, and all but a few have considerably more than that. That’s a major change.

These can be considered good initial steps.

If you’re going to change politics in Idaho, at least somewhat, you’re not going to do it all at once. But, one step at a time, this is a place to start.