Opinions / Op-eds

Senator Scott Herndon on Special Session

August 29, 2023

Press Contact: Senator Scott Herndon
Ph. (208) 610-2680

Sagle, Idaho – Idaho State Senator Scott Herndon started a petition Sunday in the Idaho legislature to call the house and the senate into a special session to consider ways to fix Idaho’s Presidential primary election that got removed from Idaho law earlier this year.

On Monday afternoon, Senator Chuck Winder started an alternate petition that gives Idahoans a very limited choice: a presidential primary election in May. Worse, because of how late we are in 2023 relative to the deadlines of the state and national Republican parties, it is too late for the Idaho legislature to enact a May presidential primary and have it take effect for Idaho’s Republican voters in 2024.

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Background: Until a bill passed earlier this year, Idaho held a presidential primary election on the second Tuesday of March in presidential election years. Idaho’s March presidential primary was used for the first time for the 2016 election in which President Trump became the Republican nominee. Before 2012, Idaho’s presidential primary was on the third Tuesday of May.

Idaho moved the presidential primary from May to March so that Idaho voters could have an impact on who would win the national nomination. By the time of a late May presidential primary, most races are already won, and Idaho’s voters’ selections are irrelevant. For example, between 1996 and 2012, five major party presidential candidates had already won their party’s nominations for president before the third week in May, including Republican nominees Bob Dole, George W. Bush, John McCain, and Democrats Al Gore and John Kerry (Source: Idaho Capital Sun).

Regardless, Senator Mark Harris and Representative Dustin Manwaring sponsored House Bill 138 earlier this year, which claimed to consolidate the once-every-four-years March presidential primary into the regular May primary elections. Inexplicably, the flawed HB138 eliminated the presidential primary election altogether from Idaho law. Governor Little signed that bill on March 28, 2023, knowing it removed the presidential primary.

The legislature was at that time in the 2023 regular session, meeting for the last time nine days later, on April 6, 2023. Even though there was time, the legislature adjourned without a remedy for HB138’s unfortunate consequences.

Suddenly left without a legal presidential primary election, the 200+ members of the Idaho Republican Party’s state central committee met in June and adopted a party caucus to be held on March 2, 2024.

Motivated by an October 1, 2023, deadline by which to notify the Republican National Committee how Idaho will choose its delegation, the Idaho GOP wrote its new caucus rule with an option to have a 2024 presidential primary election if the Idaho legislature restores the March presidential primary before October 1, 2023.

With the October 1 national party deadline now only five weeks away and with the legislature out of regular session until January 2024, the only way to save the presidential primary election is to meet immediately in a special legislative session to reinstate a March presidential primary election. “The petition I started on Sunday would enable the Idaho legislature to restore a presidential primary in time for the 2024 elections”, said Senator Scott Herndon.

By offering only a May primary, Senator Winder’s petition ignores the elephant in the room: The state Republican Party has already solved the 2024 presidential nomination in its rules. The party will have a caucus unless the legislature reinstates a March primary by October 1.

If Senator Winder’s May primary were to pass, the state party would not have enough time to change its rules before the October 1 RNC deadline. Senator Winder would have Idaho taxpayers needlessly spend about $30,000 a day on a special legislative session that will not restore a 2024 presidential primary election for Idaho’s Republican voters.

“To save taxpayer’s money, Senator Winder’s proposed May primary legislation could simply wait for the 2024 regular legislative session in January”, said Herndon.

But there also is a substantial constitutional problem with Senator Winder’s petition.

The ability of the Idaho legislature to call itself into a special session is a new change to the Idaho constitution approved by Idaho’s voters in the November 2022 general election. The constitutional change was triggered by the legislature’s inability to meet during the COVID-19 pandemic, during which the governor ruled Idaho without legislative input. Now, the legislature must be convened when 60% of the house and senate members sign a petition specifying the subjects to be considered in a special session.

The petition, distributed by Senator Winder Monday afternoon, does not agree with the Idaho Constitution’s plain words. “Senator Winder, in the words of his petition, has given us the option to have a session only about one specific bill that is designated by number in his petition. But a bill is not a subject. The Idaho Constitution has long defined “subject” in Article III, Section 16. A bill, defined in Article III, sections 14 and 15, is not a subject, and petitioning for a special session for one designated bill violates the meaning of the plain term “subjects” as used in the newly amended Article III, Section 8(2) of the constitution”, stated Herndon.

“We disregard the people of Idaho and the principles of the American Republic when we pervert the plain words and definitions used in our constitution. Further, the bill contemplated by Senator Winder’s petition won’t solve the presidential primary problem for Idaho’s Republican voters in 2024. Finally, restricting the session to one bill neuters the ability of senators and representatives to represent their own districts by providing other solutions”, continued Herndon.

“If the subject of a session is unconstitutionally limited to one single drafted bill, then why have a special session at all? In that case, the people of Idaho could have amended the constitution to allow the legislature to ratify a bill draft by signing a petition. Upon receipt of the required number of signatures, the governor could sign the draft into law, and the senators and representatives could stay home and save the taxpayers the money it costs to travel to Boise to conduct the ratification”, said Herndon.

Herndon concludes, “A special legislative session should not have a pre-determined outcome and should allow for the diverse group of 105 legislators from all over the state to come to Boise to represent their constituents. While it is a fact that due to the RNC’s deadlines, the only option for Republicans to avoid a 2024 Idaho Republican presidential caucus is to reinstate a March presidential primary election, the content of my petition honors the Idaho constitution by allowing all legislators to have their solutions to the presidential primary problem equally considered”.

Unlike the petition started by Senator Winder, Senator Herndon’s petition for a special session, if acted on in the next few weeks, has the potential to give Republican voters a voice in a presidential primary election in 2024.

The petition Senator Herndon submitted to house and senate members reads as follows:

Petition for a special session of the 67th Idaho Legislature. We, the undersigned representatives and senators of the 67th Idaho legislature, do hereby petition the president pro tempore of the senate and the speaker of the house of representatives to convene a special session of the Idaho legislature for the purpose of considering legislation that pertains to Idaho’s Presidential primary.

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