Idahoans United for Women and Families v. Labrador

                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                     Docket No. 52636-2025

 Re: Verified Petition for Writs of             )
 Certiorari and Mandamus.                       )
 ---------------------------------------------- )          Boise, April 2025 Term
 IDAHOANS UNITED FOR WOMEN AND )
 FAMILIES,                                      )          Opinion filed: June 24, 2025
                                                )
     Petitioner,                                )          Melanie Gagnepain, Clerk
                                                )
 v.                                             )          SUBSTITUTE OPINION, THE
                                                )          OPINION DATED JUNE 16, 2025,
 RAUL LABRADOR, in his official capacity as )              IS WITHDRAWN
 the Idaho Attorney General; PHIL )
 MCGRANE, in his official capacity as the )
 Idaho Secretary of State; LORI WOLFF, in )
 her official capacity as the Administrator of )
 the Idaho Division of Financial Management; )
 and the IDAHO DIVISION OF FINANCIAL )
 MANAGEMENT,                                    )
                                                )
     Respondents.                               )
                                                )

       Original proceeding in the Idaho Supreme Court seeking writs of certiorari and
       mandamus.

       Petitioner’s Verified Petition against the Idaho Secretary of State is dismissed; its
       Verified Petition for a Writ of Mandamus against the Idaho Attorney General and
       the Idaho Division of Financial Management is partially granted; and its Verified
       Petition for a Writ of Certiorari against the Idaho Attorney General and the Idaho
       Division of Financial Management is denied.

       Holland & Hart LLP, Boise, for Petitioner. Anne Henderson Haws argued.

       Raúl R. Labrador, Idaho Attorney General, Boise, for Respondents. Alan M. Hurst
       argued.



ZAHN, Justice.
       This original action concerns the fiscal impact statement and ballot titles for a citizen
initiative entitled the “Reproductive Freedom and Privacy Act” (“Initiative”). Petitioner, Idahoans
United for Women and Families (“Idahoans United”), filed this original action seeking a writ of
certiorari and writ of mandamus ordering the Idaho Division of Financial Management (“DFM”)
to revise its Fiscal Impact Statement (“FIS”) and ordering the Idaho Attorney General to revise his
long and short ballot titles. Idahoans United also seeks a writ against the Idaho Secretary of State
but does not specify which writ is requested or what it seeks to compel.
        After considering the arguments of counsel, we agree with some, but not all, of Idahoans
United’s arguments. For the reasons explained below, we dismiss the Petition against the Secretary
of State because Idahoans United has failed to properly invoke our original jurisdiction. We
partially grant the request for a writ of mandamus against DFM because the FIS fails to
substantially comply with Idaho Code section 34-1812. We partially grant the request for a writ of
mandamus against the Idaho Attorney General because the short ballot title fails to substantially
comply with Idaho Code section 34-1809. However, we deny the request for a writ of mandamus
as it pertains to the long ballot title because it substantially complies with Idaho Code section 34-
1809.
                                    I.   BRIEF SUMMARY
        Article III, section 1 of the Idaho Constitution reserves to the people the power to legislate
directly through the initiative process, under such conditions and in such manner as provided by
laws enacted by the Idaho Legislature. Idaho law requires citizens to first submit a copy of the
initiative petition to the Idaho Secretary of State. Idaho law then triggers a series of events that
must occur within specified timeframes. One is DFM’s preparation of an FIS. Another is the
Attorney General’s preparation of short and long ballot titles. Idaho law identifies mandatory
requirements for both the FIS and the ballot titles.
        Idahoans United filed a Petition with this Court, seeking a writ of mandamus or writ of
certiorari against DFM, the Attorney General, and the Secretary of State. Idahoans United argues
that neither the FIS nor the ballot titles for the Initiative meet the requirements of Idaho law. It
asks this Court to either certify the FIS and ballot titles it has prepared or order DFM and the
Attorney General to prepare a new FIS and new ballot titles that substantially comply with Idaho
law.
        For reasons we discuss in more detail below, we partially grant the requested writ of
mandamus against DFM. We conclude that the FIS fails to substantially comply with the
requirements of Idaho Code section 34-1812 because DFM has failed to establish a factual basis



                                                  2
for its estimated fiscal impact. We also conclude that the FIS fails to substantially comply with the
clear and concise requirement of the statute because it contains conflicting statements concerning
whether there will be a fiscal impact on the budget of the Idaho Department of Correction, and its
reference to the state Medicaid budget creates confusion concerning the total fiscal impact. Finally,
we conclude that the FIS fails to substantially comply with the statutory requirement to avoid legal
and technical terms whenever possible because it includes unnecessary references to state statutes
and a vague mention of “Medicaid references.” However, we deny the requested writ concerning
the references to the Medicaid and prisoner populations. We conclude those references
substantially comply with the statutory requirement to provide an explanation of the assumptions
underlying any estimated fiscal impact.
       As to the Attorney General, we partially grant and partially deny Idahoans United’s Petition
seeking a writ of mandamus. We conclude that the Attorney General’s short ballot title fails to
substantially comply with the distinctive and comprehensive requirement of Idaho Code section
34-1809 because it fails to alert a prospective signer of the Initiative to the Initiative’s four
distinctive characteristics. However, we deny the requested writ concerning the use of “fetus
viability” in the short ballot title. We conclude that the short title substantially complies with the
statutory requirement to use language by which the Initiative is commonly referred. The phrase to
which Idahoans United objects, “fetus viability,” has been used in Idaho before. While Idahoans
United’s preferred term, “fetal viability,” has been used more frequently, the meaning of the two
phrases does not substantially differ and they simply use different parts of speech for the same
word. We therefore conclude that the short title substantially complies with section 34-1809. We
deny the requested writ concerning the long ballot title and conclude that it substantially complies
with the statutory requirements.
       For the reasons explained below, we decline to certify Idahoans United’s proffered ballot
titles and FIS. This Court has previously declined to dictate the form of ballot titles because it is
not our job to determine the best way to draft a ballot title. Rather, our job is to determine whether
the ballot titles substantially comply with the requirements of Idaho law. The same holds true for
the FIS. Therefore, we remand the short ballot title to the Attorney General and the FIS to DFM.
We order them to provide us with a revised short ballot title and a revised FIS by 4 p.m. MDT on
June 23, 2025. To avoid further litigation and to finalize the FIS as quickly as possible, we also




                                                  3
order DFM to submit a sworn declaration by the preparer of the FIS describing the process utilized,
including the evidence gathered and the assumptions utilized to create the FIS.
                   II.   FACTUAL AND PROCEDURAL BACKGROUND
          Idahoans United is attempting to qualify a voter initiative entitled the “Reproductive
Freedom and Privacy Act” to appear on the 2026 general election ballot. On November 20, 2024,
Idahoans United submitted the Initiative to the Secretary of State. When an initiative petition is
submitted to the Secretary of State, “Idaho law trigger[s] a series of events, which must occur
within specific timeframes.” Idahoans for Open Primaries v. Labrador (In re Verified Pet. for
Writs of Cert. & Mandamus) (“Open Primaries”), 

, 473, 

, 1269
(2023).
          Upon receiving an initiative petition, the Secretary of State must immediately transmit a
copy of the initiative to DFM for the issuance of an FIS under Idaho Code section 34-1812. I.C. §
34-1804(2). DFM has twenty days from its receipt of the initiative petition to write and file an FIS
with the Secretary of State’s office. I.C. § 34-1812(1). The Secretary of State then must
immediately transmit the FIS to the party who filed the initiative. Id.
          When soliciting signatures for an initiative, signature gatherers must offer a copy of the
FIS summary to electors. I.C. § 34-1812(3). The FIS summary must also be published in the state
voters’ pamphlet and on the official ballot. Id. The FIS summary and the detailed FIS must be
available to the public on the Secretary of State’s website “no later than August 1.” Id.
          Upon receiving the initiative petition, the Secretary of State must also transmit a copy of
the initiative to the Attorney General for the issuance of a certificate of review under Idaho Code
section 34-1809. I.C. § 34-1804(1). Upon receipt of the initiative petition, the Attorney General
has twenty days to review the initiative, to “recommend to the petitioner such revision or alteration
of the measure as may be deemed necessary and appropriate,” and to issue a certificate of review
to the Secretary of State. I.C. § 34-1809(1)(a), (c).
          If the party who filed the initiative chooses to proceed, the proponent has fifteen days to
file the initiative with the Secretary of State for the issuance of ballot titles. I.C. § 34-1809(2). The
Secretary of State must immediately submit the initiative to the Attorney General to assign ballot




                                                   4
titles. Id. The Attorney General must then prepare a short and a long ballot title 1 and submit them
to the Secretary of State within ten days. I.C. § 34-1809(2)(a), (d). The Secretary of State must
then provide the ballot titles to the party who filed the initiative. I.C. § 34-1809(2)(b). “The ballot
titles shall be used and printed on the covers of the petition when in circulation[.]” I.C. § 34-
1809(2)(c).
         In this action, the Secretary of State transmitted the Initiative to DFM, which prepared an
FIS that projected additional costs to the State if voters approved the Initiative:
                The laws affected by the initiative would not impact income, sales, or
         product taxes. There is no revenue impact to the General Fund found.
                The initiative could change state expenditures in minor ways. Costs
         associated with the Medicaid and prisoner populations may occur; see Idaho Codes
         20-237B and 56-255 and the Medicaid references from Health and Welfare.
                 Passage of this initiative is likely to cost less than $20,000 per year. The
         Medicaid budget for providing services was about $850 million in FY2024. If
         passed, nominal costs in the context of the affected total budget are insignificant to
         the state.
         Assumptions
                 Changes in costs associated with the ballot initiative could impact state
         funding expenditures for Corrections [sic] and Medicaid budgets. The amount of
         those costs would be dependent on the frequency of need for reproductive services
         within the agencies. The manner of the budget impacts would be different for
         Corrections [sic] due to the health care provisions used by the agency; there is no
         expected changes to the Corrections [sic] health care budget. Billing history prior
         to the Dobbs decision suggests that $20,000 per year is a conservative over-estimate
         of the costs. Neither of these agencies reverted funding when the Dobbs decision
         was made in 2022 (and already established legislation in Idaho code took effect). It
         is assumed that any additional costs due to the passage of this ballot initiative could
         be absorbed in the Corrections [sic] and Health and Welfare budgets should the
         ballot initiative pass.
         Idahoans United filed the Initiative with the Secretary of State for the assignment of ballot
titles. The Attorney General sent the ballot titles to the Secretary of State, and the Secretary of
State provided them to Idahoans United that same day. The short ballot title states:
         Measure establishing a right to abortion up to fetus viability and to make
         reproductive decisions regarding one’s own body.



1
  Idaho Code section 34-1809 refers to the ballot titles as the “short title” and “general title.” The parties and prior
decisions of this Court often colloquially refer to the general title as the “long title.” This opinion will similarly use
the term “long title” to refer to the general title.


                                                            5
The long ballot title states:
                The measure seeks to change Idaho’s laws by introducing a right to
        reproductive freedom and privacy including a right to abortion up to the point of
        the fetus’s ability to survive outside the womb. After fetal viability, there would be
        no general right to abortion except in cases of “medical emergency.” The “medical
        emergency” exception would expand Idaho’s current life exception and allow
        abortions when pregnant women face complicating physical conditions that
        threaten their life or health, “including serious impairment to a bodily function” or
        “serious dysfunction of any bodily organ or part.”
               The proposed measure codifies a right to make reproductive decisions,
        including contraception, fertility treatment, and prenatal and postpartum care. This
        includes a “right of privacy” in making these decisions. The measure seeks to
        prevent the state from enforcing certain abortion laws protecting the life of the
        unborn child. It would also impose a requirement that any restrictions on
        reproductive decisions, including abortion prior to fetus viability, must be
        “narrowly tailored to improve or maintain the health of the person seeking
        reproductive health care.” The measure would also prevent the state from
        penalizing patients, healthcare providers, or anyone who assists in exercising the
        proposed right.
        After receiving the ballot titles, Idahoans United filed a Verified Petition for Writs of
Certiorari and Mandamus with this Court, arguing that the FIS and the short and long ballot titles
violate Idaho law. Idahoans United asks this Court to issue a writ of certiorari or mandamus
directing DFM to issue the proposed FIS prepared by Idahoans United or to issue an FIS that
complies with Idaho law. It also asks this Court to issue a writ of certiorari or mandamus certifying
the ballot titles prepared by Idahoans United or directing the Attorney General to provide ballot
titles that comply with Idaho law.
                                 III.    ISSUES ON APPEAL
    1. Whether Idahoans United has properly invoked this Court’s original jurisdiction.
    2. Whether the FIS substantially complies with Idaho Code section 34-1812.
    3. Whether the short ballot title substantially complies with Idaho Code section 34-1809.
    4. Whether the long ballot title substantially complies with Idaho Code section 34-1809.
    5. Whether Idahoans United is entitled to attorney fees on appeal.
                                        IV.   ANALYSIS
A. Idahoans United has properly invoked this Court’s original jurisdiction to issue a writ of
   mandamus.
        Idahoans United seeks writs of mandamus and of certiorari from this Court. Our
jurisdiction to issue the writs stems from Article V, section 9 of the Idaho Constitution, which



                                                  6
states that “[t]he Supreme Court shall . . . have original jurisdiction to issue writs of mandamus,
certiorari, prohibition, and habeas corpus, and all writs necessary or proper to the complete
exercise of its appellate jurisdiction.” Before this Court will exercise its original jurisdiction to
issue a writ, the petitioning party must demonstrate that the elements of the writ are met. Labrador
v. Idahoans for Open Primaries, ___ Idaho ___, ___, 

, 90 (2024).
       A writ of mandamus “may be issued by the [S]upreme [C]ourt . . . to compel the
performance of an act which the law especially enjoins as a duty resulting from an office, trust or
station[.]” I.C. § 7-302. The writ of certiorari may be granted when an inferior tribunal, board or
officer exercising judicial functions has exceeded its jurisdiction. I.C. §§ 7-201, 7-202. “It is only
appropriate for a court to issue an extraordinary writ ‘where there is not a plain, speedy and
adequate remedy in the ordinary course of law.’ ” Idaho State Athletic Comm’n ex rel. Stoddard
v. Off. of the Admin. Rules Coordinator, 

, 393, 

, 727 (2024) (quoting
Westover v. Cundick, 

, 

 (2017)); I.C. §§ 7-303, 7-402. We
conclude that Idahoans United has failed to demonstrate these elements are met with regard to the
Secretary of State. However, it has demonstrated that the elements are met with regard to DFM
and the Attorney General.
   1. We dismiss the Petition against the Secretary of State.
       Idahoans United asks this Court to issue a writ against the Secretary of State but does not
specify which writ it seeks. It has not alleged that the Secretary of State has failed to comply with
a clear legal duty or that the Secretary of State acted in a quasi-judicial function in excess of his
jurisdiction. Instead, Idahoans United alleges that DFM and the Attorney General failed to perform
the duties imposed by Idaho Code sections 34-1809 and 34-1812. They have made no such
allegation concerning the Secretary of State. At oral argument, Idahoans United admitted that the
Secretary of State has performed the ministerial duties required of him up to this point and that it
named the Secretary of State as a party in this action out of “an abundance of caution.” Idahoans
United has failed to establish the elements required for a writ of mandamus or a writ of certiorari
and we therefore dismiss the Petition against the Secretary of State.
    2. Idahoans United has properly invoked this Court’s original jurisdiction to issue a writ of
       mandamus against DFM.
       Idahoans United also seeks a writ of mandamus against DFM. “[M]andamus is not a writ
of right and the allowance or refusal to issue a writ of mandate is discretionary.” Coeur d’Alene
Tribe v. Denney, 

, 

 (2015). A writ of mandamus may be


                                                  7
issued by the Supreme Court “to compel the performance of an act which the law especially enjoins
as a duty resulting from an office, trust or station[.]” I.C. § 7-302. “A writ of mandamus will lie if
the officer against whom the writ is brought has a ‘clear legal duty’ to perform the desired act, and
if the act sought to be compelled is ministerial or executive in nature.” Idaho State Athletic
Comm’n, 173 Idaho at 393, 542 P.3d at 727 (emphasis added) (citation omitted). Additionally, this
Court will only issue an extraordinary writ “where there is not a plain, speedy and adequate remedy
in the ordinary course of law.” I.C. §§ 7-303, 7-402.
       Idahoans United argues that a writ is proper here because DFM has a duty to prepare an
FIS that complies with Idaho Code section 34-1809, that the FIS prepared by DFM is inaccurate
and does not comply with the statute, and that Idahoans United cannot begin collecting signatures
for the Initiative until it has a valid FIS. Idahoans United has submitted a declaration asserting that
any delay in collecting signatures will hinder its chances of collecting enough signatures to qualify
for the 2026 election. DFM argues that, while it has a clear duty to prepare an FIS, it has discretion
in deciding the content of the FIS, so mandamus relief is not appropriate.
       We conclude that Idahoans United has properly invoked this Court’s original jurisdiction.
The plain language of Idaho Code section 34-1812 imposes a clear legal duty on DFM to prepare
an FIS that meets the mandatory requirements of the statute. Specifically, this statute enumerates
those requirements as follows:
   •   It “shall prepare an unbiased, good faith statement of the fiscal impact of the law proposed
       by the initiative.” I.C. § 34-1812(1) (emphasis added).
   •   It “shall describe any projected increase or decrease in revenues, costs, expenditures, or
       indebtedness that the state or local governments will experience if the ballot measure is
       approved by the voters.” I.C. § 34-1812(2) (emphasis added).
   •   It “shall include both immediate expected fiscal impacts and an estimate of any state or
       local government long-term financial implications.” Id. (emphasis added).
   •   It “must be written in clear and concise language and shall avoid legal and technical terms
       whenever possible.” Id. (emphasis added).
   •   It “must include both a summary of the fiscal impact statement, not to exceed one hundred
       (100) words, and a more detailed statement of fiscal impact that includes the assumptions
       that were made to develop the fiscal impact.” I.C. § 34-1812(3) (emphasis added).




                                                  8
DFM’s statutory duty to prepare an FIS that meets these requirements is clear and non-
discretionary as evidenced by the statute’s repeated use of the words “shall” and “must.” The
preparation of the FIS is an act that is ministerial or executive in nature.
        The fact that DFM exercises discretion in estimating the amount of any fiscal impact does
not alter our conclusion that DFM has a clear legal duty to prepare an FIS that complies with
section 34-1812. DFM is correct that, generally, a writ of mandamus is improper to review acts of
discretion. See Brady v. City of Homedale, 

, 

 (1997).
However, our caselaw is clear that in instances where there is a clear legal duty for an officer to
act but the details of those actions are left to an officer’s discretion, mandamus may still be proper.
See Beem v. Davis, 

, 

 (1918) (“The fact that certain details are
left to the discretion of the authorities does not prevent relief by mandamus.”); Moerder v. City of
Moscow, 

, 

 (1953) (“Public officials may, under some
circumstances, be compelled by writ of mandate to perform their official duties, although the
details of such performance are left to their discretion.”); Musser v. Higginson, 

,
394–96, 

, 811–13 (1994) (“For more than three-quarters of a century, the Court has
adhered to the following principle: The fact that certain details are left to the discretion of the
authorities does not prevent relief by mandamus.” (internal quotation marks and citation omitted)).
That principle applies with equal force to the facts of this action. While DFM has discretion in
preparing the contents of the FIS, it has no discretion concerning whether to prepare an FIS that
meets the requirements of section 34-1812.
       We also conclude that Idahoans United has demonstrated that “there is not a plain, speedy
and adequate remedy in the ordinary course of law.” I.C. §§ 7-303, 7-402. In Open Primaries, we
held that a petitioner’s inability to begin collecting signatures for its initiative until the Secretary
of State certifies the ballot titles was sufficient to invoke this Court’s original jurisdiction.
Idahoans for Open Primaries v. Labrador (In re Verified Pet. for Writs of Cert. & Mandamus)
(“Open Primaries”), 

, 475–76, 

, 1271–72 (2023). This action presents
a similar situation because Idahoans United is prevented from collecting signatures until the
Secretary of State certifies an FIS. I.C. § 34-1802(1); see also Buchin v. Lance (In re Writ of
Prohibition Entitled “Ballot Title Challenge Oral Arg. Req.”), 

, 

 (1995) (holding that “any signature collected by the circulation of a petition with . . . invalid
titles cannot be valid”). Idahoans United also submitted a declaration from its executive director,



                                                   9
Melanie Folwell, which asserts that any delay in collecting signatures will adversely impact its
efforts to qualify the Initiative for the 2026 general election. Having demonstrated both the
elements of a writ of mandamus and the lack of an adequate remedy, we hold that Idahoans United
has properly invoked this Court’s original jurisdiction.
       We decline DFM’s invitation to adopt the reasoning of a recent Washington Supreme Court
decision that dismissed a petition for a writ of mandamus seeking to prevent the publication of a
public investment impact disclosure for several ballot initiatives. See Walsh v. Hobbs, 

, 703, 706 (Wash. 2024) (en banc). While the Washington Supreme Court may have reached a
different result under its precedent, we apply this Court’s precedent and conclude that Idahoans
United has properly invoked our original jurisdiction.
       Idahoans United also seeks writs of certiorari against DFM and the Attorney General. We
decline to separately analyze the elements of those writs because mandamus relief fully resolves
Idahoans United’s claim. In this action, the resolution of both writs turns on whether the FIS
substantially complies with section 34-1812. The relief that Idahoans United seeks for each writ is
the same: a writ requiring DFM to prepare an FIS that substantially complies with the requirements
of section 34-1812. We have already held that Idahoans United properly invoked our original
jurisdiction to issue a writ of mandamus. Thus, if the FIS substantially complies, then Idahoans
United is not entitled to a writ of mandamus. The result would be no different for the requested
writ of certiorari. If the FIS does not substantially comply, then Idahoans United is entitled to a
writ of mandamus. A writ of certiorari would not award any greater relief than the requested writ
of mandamus. Given that the outcomes would be the same for either writ, and given our conclusion
that Idahoans United properly invoked this Court’s original jurisdiction on the writ of mandamus,
we do not need to address its claim for a writ of certiorari. We therefore deny Idahoans United’s
request for a writ of certiorari as duplicative of the relief sought in its request for a writ of
mandamus.
   3. Idahoans United has properly invoked this Court’s original jurisdiction to issue a writ of
      mandamus against the Attorney General.
       Finally, Idahoans United seeks a writ of mandamus against the Attorney General. The
Attorney General does not challenge this Court’s jurisdiction to issue a writ of mandamus
concerning the ballot titles. We conclude that Idahoans United has properly invoked our original
jurisdiction to issue a writ of mandamus against the Attorney General.



                                                10
        Section 34-1809 mandates that “the attorney general shall provide ballot titles,” I.C. § 34-
1809(2)(a) (emphasis added), that “shall contain: . . . [a] [d]istinctive short title not exceeding
twenty (20) words by which the measure is commonly referred to or spoken of” and “[a] general
title expressing in not more than two hundred (200) words the purpose of the measure,” I.C. § 34-
1809(2)(d)(i), (ii) (emphasis added). Section 34-1809 also mandates that, “[i]n making the ballot
title, the attorney general shall, to the best of his ability, give a true and impartial statement of the
purpose of the measure and in such language that the ballot title shall not be intentionally an
argument or likely to create prejudice either for or against the measure.” I.C. § 34-1809(2)(e)
(emphasis added).
        Idahoans United has properly pleaded that section 34-1809 imposes a clear legal duty on
the Attorney General to prepare ballot titles that meet the mandatory requirements of the statute.
The preparation of the ballot titles is an act that is ministerial or executive in nature. And for the
reasons discussed above regarding Idahoans United’s petition against DFM, we conclude that
Idahoans United has properly demonstrated that “there is not a plain, speedy and adequate remedy
in the ordinary course of law” with regard to the ballot titles. Further, for the reasons discussed
above, we deny its request for a writ of certiorari as duplicative of its request for a writ of
mandamus.
B. The FIS does not substantially comply with Idaho Code section 34-1812.
        Idahoans United argues that the FIS prepared by DFM fails to comply with Idaho Code
section 34-1812. The statute requires DFM to prepare “an unbiased, good faith statement of the
fiscal impact of the law proposed by the initiative.” I.C. § 34-1812(1). It must include both a 100-
word summary of the statement and a more detailed statement of fiscal impact that includes the
assumptions that were made to develop the fiscal impact. I.C. § 34-1812(3). The FIS “must be
written in clear and concise language and shall avoid legal and technical terms whenever possible.
Where appropriate, [an FIS] may include both estimated dollar amounts and a description placing
the estimated dollar amounts into context.” I.C. § 34-1812(2). Idahoans United argues that the FIS
prepared for the Initiative violates these requirements because it was not made in good faith, is
unclear, and impermissibly includes legal and technical terms.
        Before we address the specific challenges raised by Idahoans United, we first must
determine the appropriate legal standard to apply. In Open Primaries, we determined that we
would employ a “substantial compliance” standard when reviewing ballot titles prepared by the



                                                   11
Attorney General. 172 Idaho at 479, 533 P.3d at 1275. We concluded this standard was appropriate
because we had applied it in other situations where the critical inquiry was whether a party had
met statutory requirements. Id. Idahoans United’s arguments here require us to engage in a similar
critical inquiry: whether DFM has fulfilled its mandatory duties set forth in section 34-1812. As a
result, we conclude that our reasoning expressed in Open Primaries applies with equal force here.
Therefore, we will review the FIS to determine whether it substantially complies with the
requirements of Idaho Code section 34-1812.
       We now turn to the specifics of Idahoans United’s challenge. It claims that the FIS fails to
meet nearly every statutory requirement:
   •   It is not drafted in good faith because it estimates a fiscal impact on taxpayers despite
       language in the Initiative that it “does not create a financial obligation on the state, its
       agencies, or their programs.” It also lacks a factual basis for its conclusions that there may
       be a fiscal impact on the Idaho Department of Correction (“IDOC”) and Medicaid budgets.
   •   It is not clear and concise because it creates confusion regarding whether there will be a
       fiscal impact.
   •   It fails to avoid legal and technical terms whenever possible because it cites statutes and
       regulatory references.
   •   It is prejudicial because it unnecessarily references Medicaid and prisoner populations and
       the Idaho Department of Health and Welfare’s (“IDHW”) total Medicaid budget.
We address each argument in turn.
   1. The FIS does not substantially comply with the good faith requirement.
       Idahoans United argues that the FIS fails to substantially comply with the requirements of
section 34-1812 because there is no factual basis supporting the estimated fiscal impact and the
Initiative specifically states that it will not impose a financial obligation on the State. DFM
responds that it acted in good faith by consulting with a Medicaid expert from IDHW.
       We hold that the FIS does not substantially comply with the good faith requirement of
section 34-1812 because DFM has not established a reasonable basis for its estimated fiscal
impacts. Idaho Code section 34-1812 requires DFM to “prepare an unbiased, good faith statement
of the fiscal impact of the law proposed by the initiative.” I.C. § 34-1812(1) (emphasis added).
Good faith includes “honesty in belief or purpose” and “faithfulness to one’s duty or obligation.”
Good Faith, Black’s law Dictionary (12th ed. 2024). Section 34-1812 requires DFM to project and


                                                12
estimate the potential fiscal impact. As such, the statute does not require certainty or exactness.
However, the statute’s requirement that the FIS be a “good faith statement” requires that it be more
than a guess or speculation. In other words, while section 34-1812 does not require DFM to
perfectly project the future, the requirement that the FIS be “a good faith statement” requires that
DFM have a reasonable basis for its estimated fiscal impact.
       In this case, the FIS posits that, if the Initiative passed, there may be a potential increase in
state expenditures for the Medicaid and prisoner populations. However, the evidence in the record
before us does not support these conclusions. As a result, the FIS fails to substantially comply with
the good faith requirement of section 34-1812.
       Both parties submitted evidence to this Court related to DFM’s investigation of the fiscal
impact of the Initiative. The evidence submitted includes DFM emails with Juliet Charron, the
deputy director for Medicaid and Behavioral Health at IDHW. Those emails show that IDHW
provided DFM data concerning abortion-related Medicaid claims for the years 2018 through 2022.
The emails also indicate that a DFM economist had a phone call and a meeting with Charron.
However, none of the materials indicate that DFM spoke with anyone at the IDOC or that it
conducted any investigation of whether IDOC paid for any abortion-related care for the prisoner
population. While DFM submitted several declarations to this Court, it did not provide a
declaration from the economist who prepared the FIS or from anyone else at DFM to explain the
evidence gathered, process employed, or reasoning underlying its FIS. DFM did submit two
declarations from IDHW employees concerning abortion data and Medicaid claims data. We will
evaluate the evidence before us to determine whether the FIS is a good faith statement, or put
differently, whether DFM had a reasonable basis for the estimated fiscal impacts contained in the
FIS.
       Initially, we note that there is no evidence supporting the FIS’s statement that there may
be a fiscal impact to the IDOC budget due to increased costs for medical care for the prisoner
population. There is no evidence that DFM communicated with IDOC or conducted any research
relating to the IDOC budget and spending for abortion-related care provided to the prisoner
population. As a result, it appears that the FIS’s statement that the Initiative could increase the
budget for prisoner medical care lacked a reasonable basis and, therefore, was entirely speculative.
We hold that the FIS fails to substantially comply with the statutory requirement for a good faith
statement as it relates to the estimated impact on the IDOC budget.



                                                  13
        Next, we conclude that the FIS lacks a reasonable basis for the estimated impact on the
Medicaid budget. While there is evidence that DFM investigated certain Medicaid costs, the
evidence is insufficient to support the FIS’s estimate that passage of the Initiative may result in
additional state expenditures.
        The emails between DFM and Charron include data concerning abortion-related Medicaid
claims for the years 2018 through 2022:
        2018: 2 claims billed, totaling $2,576; $0 paid
        2019: 5 claims billed, totaling $9,795; $500 paid
        2020: 4 claims billed, totaling $24,323; $9,591 paid
        2021: 2 claims billed, totaling $13,806; $0 paid
        2022: No claims billed
The emails do not describe what the claims were for or the reasons why the claim amounts were
not fully covered by Medicaid.
        DFM submitted to this Court a declaration from Miren M. Unsworth, IDHW’s deputy
director of the Health and Human Services Division. Unsworth’s declaration provided data on the
“Total Reported Idaho Abortions and Chemical Abortions by Year” between 2015 and 2023. That
data indicated that beginning in 2022, the year the United States Supreme Court issued its decision
in Dobbs v. Jackson Women’s Health Organization, 

 (2022), the number of Idaho
resident abortions and chemical abortions decreased dramatically.
        DFM also submitted to this Court a declaration from Charron. Charron testified that
between July 2020 and June 2021, the average monthly enrollment for Idaho Medicaid of women
between the ages of 14 and 45 was 97,055. She also testified that Idaho Medicaid provides
coverage for treatment and follow-up care at hospitals following abortion complications, including
complications from chemically-induced abortions. She stated that it is often difficult to quantify
Idaho’s costs for providing this coverage due to a variety of factors. She testified that Idaho
Medicaid expended $3,025.94 in state funds to cover treatment and follow-up care for abortion-
related medical complications in calendar year 2019, and $3,797.42 in state funds in calendar year
2022.
        Idahoans United claims that the Initiative would not increase the State dollars expended by
Idaho Medicaid on abortion-related claims for two reasons. First, the Initiative specifically states
that it “does not create a financial obligation on the state, its agencies, or their programs to pay for,



                                                   14
fund, or subsidize the reproductive health care protected by this act.” Second, federal and Idaho
law significantly restrict the use of public funds for abortion and the Initiative does not change
those laws.
       The federal Hyde Amendment prohibits the Secretaries of Labor, Health and Human
Services, and Education from utilizing federal funds for any abortion or health benefits coverage
that covers abortions except in the case of rape or incest, or where the pregnancy places the mother
in danger of death. See Further Consolidated Appropriations Act of 2024, 

(a), 

, 703 (2024). The Hyde Amendment is significant in this context because the
bulk of Idaho’s Medicaid spending is accomplished with federal funds. The Charron Declaration
establishes that between July 2020 and July 2021, Idaho Medicaid expended $3.24 billion on all
services for Medicaid participants. Of that total, $2.27 billion was federal funds. With regard to
state funds, Idaho’s “No Public Funds for Abortion Act” provides that no public funds made
available by the State can be used to provide for abortions. I.C. § 18-8705(1), (2). Likewise, Idaho
Code section 56-209c provides that “[n]o funds available to the department of health and welfare
. . . shall be used to pay for abortions” except when necessary to save the life of the mother or in
the case of rape or incest. I.C. § 56-209c. The Initiative does not purport to change these laws.
       Idahoans United argues that there is no evidence that DFM analyzed whether Idaho
Medicaid would be required to cover any additional abortion-related claims if the Initiative passed,
given state and federal law restricting the use of public funds and the Initiative’s language. DFM
notes that Medicaid costs related to abortion complications “are nearly certain to materialize.”
       We conclude that, while DFM has some evidence indicating that the number of abortions
would likely increase if the Initiative passed, it has not established a reasonable basis to support
its estimated fiscal impact to the Idaho Medicaid program. DFM argues that there will be a fiscal
impact because Medicaid expenses will increase due to complications related to an increased
number of chemically induced abortions. However, DFM did not submit a declaration from the
DFM economist that prepared the FIS explaining the basis for the estimated fiscal impact. As a
result, we are left to review the evidence in the record to determine whether it provides a reasonable
basis for the estimated fiscal impact to the Medicaid program. We conclude that it does not.
       The only evidence in the record that it appears DFM had when it prepared the FIS are the
emails between DFM and IDHW. Neither the Unsworth nor the Charron declarations indicate that
the data contained in those declarations was provided to DFM prior to its preparation of the FIS.



                                                 15
The emails only contain data on abortion-related claims made to Idaho Medicaid and the amounts
paid on those claims. As noted above, both federal and Idaho law permit Medicaid funds to be
used for abortions necessary to save the life of the mother. Charron has also testified that Idaho
Medicaid covers claims to treat abortion-related complications resulting from chemically induced
abortions. But the emailed claims data does not indicate whether the Medicaid claims paid between
2018 and 2022 were for abortions to save the life of the mother, to treat abortion-related
complications resulting from chemically induced abortions, or both. Without knowing how many
of the previously paid claims were for abortion-related complications, it is unclear whether the
claims data provides a reasonable basis for DFM’s estimated fiscal impact on the Medicaid budget.
       DFM also points to the Unsworth Declaration as support for its contention that the number
of chemically induced abortions will increase. While the Unsworth Declaration indicates that
Idaho residents had significantly more abortions before the Dobbs decision than after, those
numbers fail to differentiate how many of the abortions involved Medicaid recipients. The
numbers also fail to differentiate between abortions that Medicaid funds would cover and those
that it would not. Finally, the numbers give no indication concerning how many of the women who
received chemically induced abortions could be expected to experience abortion-related
complications.
       The evidence contained in the record does not provide a reasonable basis supporting the
estimated fiscal impact to the Medicaid program if the Initiative passed. As previously discussed,
Idaho Code section 34-1812 does not require certainty or exactness, but it requires more than
speculation or a guess. While DFM consulted IDHW concerning Idaho Medicaid claims, the data
received from IDHW is unclear whether there could be an increase in Idaho Medicaid claims for
abortion-related complications if the Initiative passes. Given the lack of a reasonable basis in the
record to support the estimated fiscal impact in the FIS, we hold that the estimated impact on the
Medicaid program failed to substantially comply with the good faith statement requirement of
section 34-1812.
       Finally, we are not persuaded by Idahoans United’s argument that the only good faith
estimate is zero fiscal impact because the Initiative stated that it would not impose a financial
obligation on the State. Idaho Code section 34-1812 does not require DFM to adopt the Initiative’s
stated fiscal impact. See I.C. § 34-1812. Rather, it authorizes DFM to prepare a good faith
statement of the fiscal impact proposed by the law and in doing so, authorizes DFM to work “in



                                                16
consultation with any other appropriate state or local agency.” I.C. § 34-1812(1). DFM would fail
to act in good faith if it simply adopted an initiative’s assertion that it would have no financial
impact. Rather, DFM must conduct its own investigation to prepare the FIS.
   2. The FIS does not substantially comply with the clear and concise requirement.
       Idahoans United also asserts that the FIS fails to substantially comply with the requirement
that it “must be written in clear and concise language.” I.C. § 34-1812(2). Idahoans United
contends that the FIS contains conflicting statements concerning whether passage of the Initiative
will result in increased expenditures. On one hand, the FIS states that:
   •   “Costs associated with the Medicaid and prisoner populations may occur,”
   •   “Passage of this initiative is likely to cost less than $20,000 per year,” and
   •   “Changes in costs associated with the ballot initiative could impact state funding
       expenditures for Corrections [sic] and Medicaid budgets.”
However, on the other hand, the FIS states:
   •   “[T]here is no expected changes to the Corrections [sic] health care budget,” and
   •   “[A]ny additional costs due to the passage of this ballot initiative could be absorbed in the
       Corrections [sic] and Health and Welfare budgets should the ballot initiative pass.”
Idahoans United argues that these conflicting statements are neither concise nor clear, and they
create confusion concerning whether the Initiative will have a fiscal impact.
       We agree with Idahoans United that these conflicting statements in the FIS fail to
substantially comply with the clear and concise requirement contained in section 34-1812(2). As
quoted above, the FIS both asserts that passage of the Initiative may have a fiscal impact on the
IDOC and Medicaid budgets and that there is no expected change to budgets, or changes could be
absorbed in existing budgets. The inclusion of the conflicting statements not only causes confusion
but also makes it longer than it would be without the conflicting statements. As a result, the FIS is
neither clear nor concise.
       Additionally, Idahoans United argues that the FIS is unclear due to its reference to the $850
million Medicaid budget:
       Passage of the initiative is likely to cost less than $20,000 per year. The Medicaid
       budget for providing services was about $850 million in FY2024. If passed,
       nominal costs in the context of the affected total budget are insignificant to the state.




                                                  17
Idahoans United argues that inclusion of the Medicaid budget also creates prejudice against the
Initiative. DFM argues that it included the Medicaid budget to put the Initiative’s expected fiscal
impact into context.
        We conclude that the reference to the Medicaid budget also fails to substantially comply
with the clear and concise requirement. While it is true that Idaho Code section 34-1812(2) allows
the FIS to “include a description placing the estimated dollar amounts in context[,]” in the context
of this FIS, the reference creates confusion. If we read the FIS to conclude that there are potential
increases in IDOC expenditures, the FIS estimates a fiscal impact of $20,000 per year but it does
not specify how much of the $20,000 is due to potential increases in IDOC expenditures versus
potential increases in Medicaid expenditures. As a result, the total Medicaid budget cannot provide
context for the $20,000 estimated impact because we do not know how much of that impact is due
to Medicaid expenditures.
        If we read the FIS to attribute the entire $20,000 impact to a potential increase in Medicaid
expenditures, the total Medicaid budget does little to put that amount into context and undermines
the clarity of other statements in the FIS. The FIS already indicates that the changes would be
“minor” and “nominal.” Listing the total Medicaid budget adds no clarity to this statement and
tends to play to the passions of voters who may take issue with the size of the State’s Medicaid
budget. Instead, it requires citizens to recognize that the total impact is not $850 million and then
do the math in their heads to determine how much the total impact is. If they did that math, the
estimated increased expenditures are 0.000023% of the Medicaid budget. If the desire is to
represent the scope of the impact through a percentage, then DFM should either stick with
“nominal,” or simply include the percentage and save voters from having to do a math problem in
their heads while standing in a voting booth.
    3. The FIS does not substantially comply with the requirement to avoid legal and technical
       terms whenever possible.
        Idahoans United argues that DFM included unnecessary legal and technical terms by citing
statutes:
        The initiative could change state expenditures in minor ways. Costs associated with
        the Medicaid and prisoner populations may occur; see Idaho Codes 20-237B and
        56-255 and the Medicaid references from Health and Welfare.
It contends that the legal citations are unnecessary because the FIS does not explain why they
apply to the Initiative. Their inclusion thus creates confusion. DFM responds that it is within its



                                                 18
discretion to decide whether legal terms are unavoidable. Here, it claims that providing the legal
citations was necessary to convey what laws would contribute to costs in conjunction with the
Initiative.
        We hold that DFM’s inclusion of legal citations in the FIS fails to substantially comply
with the statutory requirement to “avoid legal and technical terms whenever possible.” I.C. § 34-
1812(2). The references do not assist the FIS in “describ[ing] any projected increase or decrease
in revenues, costs, expenditures, or indebtedness” as required by the statute. I.C. § 34-1812(2).
The cited statutes do not mention abortions. Rather, they provide that the State will pay for certain
medical services. See I.C. §§ 20-237B, 56-255. The mention of “Medicaid references” is vague
and unclear. The legal terms referencing statutes and vague Medicaid references do nothing to help
explain the potential fiscal impact of the Initiative. Indeed, a citation to “see” a specified statute is
of little use to a voter standing in a voting booth deciding how to vote.
        For the forgoing reasons, we conclude that it was entirely possible for DFM to explain the
estimated fiscal impact without including the legal citations.
    4. DFM’s references to “Medicaid and prisoner populations” substantially comply with the
       statutory requirements.
        Finally, Idahoans United argues that DFM’s references in the FIS to the “Medicaid and
prisoner populations” will prejudice the Initiative because the public generally has a negative
impression of those populations, and the references will therefore cause prejudice against the
Initiative. DFM responds that “Medicaid and prisoner populations” are not legal or technical terms,
and the references are included to provide an explanation of the source for the increased
expenditures.
        We hold that DFM’s use of the terms “Medicaid and prisoner populations” substantially
complies with the requirements of Idaho Code section 34-1812. DFM’s estimated fiscal impact for
the Initiative was based on assumptions related to Idaho’s prisoner population and Medicaid
recipients. DFM’s inclusion of this information substantially complies with the statute because it
explains the basis for the estimated fiscal impact.
        To summarize, we agree with some, but not all, of Idahoans United’s arguments concerning
the FIS. We hold that the FIS does not substantially comply with the requirements of Idaho Code
section 34-1812 because its estimate lacks a good faith basis, it is not clear, and it unnecessarily
includes legal terms. However, we conclude that references to the Medicaid and prisoner



                                                   19
populations do not prejudice the Initiative and therefore substantially comply with the statutory
requirements applicable to the FIS.
C. The short ballot title does not substantially comply with Idaho Code section 34-1809.
        Idahoans United next argues that the short ballot title drafted by the Attorney General fails
to comply with Idaho Code section 34-1809 because it uses uncommon terms and it is not
distinctive or comprehensive. We agree with Idahoans United on the latter argument and hold that
the short title does not substantially comply with Idaho Code section 34-1809 because it fails to
capture all of the distinctive features of the Initiative.
        As noted, Idaho Code section 34-1809 requires the Attorney General to draft ballot titles
for voter initiatives. I.C. § 34-1809(2)(a). The ballot title must contain “a short title of no more
than twenty (20) words . . . . The short title must provide a distinctive statement by which the
measure would be commonly referred. Buchin v. Lance (In re Writ of Prohibition Entitled “Ballot
Title Challenge Oral Arg. Req.”), 

, 

 (1995) (citing I.C. § 34-
1809). When reviewing ballot titles, this Court considers whether the Attorney General
substantially complied with the requirements of section 34-1809. Open Primaries, 172 Idaho at
479, 533 P.3d at 1275. This Court has “long recognized that ‘it is not the Court’s role to find
another way or the best way to draft a [ballot] title, but rather to examine the Attorney General’s
language and ask whether it expresses the purpose of the measure without being argumentative or
prejudicial.’ ” Id. (quoting Buchin, 

, 

).
    1. The short title substantially complies with the statutory requirement to use language by
       which the Initiative is commonly referred.
        The Attorney General prepared the following short title for the Initiative:
        Measure establishing a right to abortion up to fetus viability and to make
        reproductive decisions regarding one’s own body.
        Idahoans United argues that the short title fails to substantially comply with Idaho Code
section 34-1809 because the phrase “fetus viability” is not language by which the measure is
commonly referred or spoken of and it will therefore prejudice the Initiative. The Attorney General
counters that the phrase “fetus viability” is a common phrase that substantially complies with the
statute and is not argumentative or prejudicial.
        We conclude that the phrase “fetus viability” has been used before in Idaho and is a
variation of Idahoans United’s suggested phrase “fetal viability.” The two phrases employ different
parts of speech for the same word and as such, the meaning of the two phrases does not


                                                   20
substantially differ. As a result, we hold that the short title substantially complies with the
requirement that it use language by which the measure is commonly referred.
       “The plain and unambiguous language of section 34-1809(2)(d)(i) requires the Attorney
General to ascertain how an initiative is commonly referred to or spoken of and incorporate that
language into the short title.” Open Primaries, 172 Idaho at 481, 533 P.3d at 1277. “This task
necessarily requires the Attorney General to determine how Idahoans commonly refer to and speak
of the measure.” Id. “When ascertaining the language used to commonly refer to the measure, the
Attorney General must remain mindful that the statute requires him to use language that is not
‘intentionally an argument or likely to create prejudice either for or against the measure.’ ” Id.
(citing I.C. § 34-1809(2)(e)). The Attorney General can achieve this by, “to the best of his ability,
giv[ing] a true and impartial statement of the purpose of the measure.” I.C. § 34-1809(2)(e).
       Idahoans United argues that the situation here is nearly identical to the one we addressed
in our decision in Open Primaries. We disagree. In Open Primaries, this Court determined that
the phrase “nonparty blanket primary” had not been used by any court in the United States,
including the United States Supreme Court and that “it appear[ed] that the term [was] one of the
Attorney General’s own creation.” Id. at 481, 533 P.3d at 1277. We also determined that the term
would likely prejudice the initiative because it was confusingly similar to a different term used by
the United States Supreme Court:
       The Supreme Court held that a “partisan blanket primary” is unconstitutional, but
       a “nonpartisan blanket primary” is constitutional. It has never discussed a “nonparty
       blanket primary.” Using an undefined term that is very similar to, but slightly
       different from those discussed by the Supreme Court could cause a voter to
       conclude that the system proposed in the [i]nitiative has been or would be held
       unconstitutional, when in fact it has not.
Id. at 484, 533 P.3d at 1280.
       The situation in Open Primaries is distinguishable from that in this action. First, the phrase
“fetus viability” is not a new, undefined term of the Attorney General’s own creation. In Buchin,
the Attorney General advanced a ballot title that referred to a “viable fetus.” Buchin, 

, 

. The parties did not challenge the use of that phrase, and this Court determined
the ballot title was insufficient on other grounds. 

 at 272–73, 912 P.2d at 640–41. However, this
Court wrote a ballot title that it “would deem acceptable[,]” which included the phrase “fetus
viability.” 

, 

. Thus, the phrase has been used in Idaho. Further, the Idaho
Code discusses when a “fetus becomes viable” and a “viable fetus.” I.C. § 18-604(13) to (15). As


                                                 21
a result, this action is distinguishable from Open Primaries because the challenged phrase is not
one of the Attorney General’s own creation and is one that has been used in Idaho.
       This action is also distinguishable from Open Primaries because the phrase “fetus
viability” is not likely to create confusion. In Open Primaries, we concluded that the Attorney
General’s terminology was likely to prejudice the initiative because it could confuse voters
concerning the constitutionality of the initiative given its similarity to the name of two other voting
systems discussed by the United States Supreme Court. Id. The short ballot title in this action is
different. The words “fetus” and “fetal” are different parts of speech used for the same concept;
one is a noun and the other is an adjective. Fetus, Merrium-Webster’s Online Dictionary (assigning
“fetus” as a noun); Fetal, Merrium-Webster’s Online Dictionary (assigning “fetal” as an adjective,
defined as “of, relating to, or being a fetus”). Regardless of which form of speech is used, the
meaning is substantially the same and therefore not confusing. Applying the relevant legal
standard, we hold that in this instance, the use of the term “fetus viability” substantially complies
with the statutory requirement that the short title not create prejudice against the Initiative.
       Next, Idahoans United argues that the phrase “fetal viability” is significantly more common
in Idaho than the phrase “fetus viability.” Idahoans United’s argument may be persuasive if we
employed a de novo standard to review the short ballot title. The applicable legal standard,
however, is one of substantial compliance. Open Primaries, 172 Idaho at 479, 533 P.3d at 1275.
Applying this standard does not involve reviewing the short title to determine if the Attorney
General used the most common term, but instead whether the Attorney General accomplished the
general purpose of the statute. We reiterate that “it is not the Court’s role to find another way or
the best way to draft a [ballot] title, but rather to examine the Attorney General’s language and ask
whether it expresses the purpose of the measure without being argumentative or prejudicial.” Id.
(quoting Buchin, 

, 

). Given that the phrase “fetus viability” has
substantially the same meaning as Idahoans United’s suggested phrase “fetal viability,” and given
that Idaho has some history of using the term “fetus viability,” we hold that the short title
substantially complies with the statute’s common language requirement.
       Idahoans United also argues that using the phrase “fetus viability” rather than “fetal
viability” would prejudice the Initiative. It presented a declaration from Dr. Hillary Shulman,
Ph.D., an associate professor at Ohio State University, who studies how word choice influences
information processing and public engagement in politics. She opines that the individual term



                                                  22
“fetus” will lead people to have a more emotional response to the Initiative and thereby cause
prejudice against it, while use of the term “fetal” would lead the public to have a more cognitive
response.
          The Attorney General first argues this Court may not consider Dr. Shulman’s testimony
because the expedited briefing schedule requested by Idahoans United causes difficulty in
obtaining discovery concerning Idahoans United’s expert and in obtaining a rebuttal expert. The
Attorney General argues that the evidentiary record in this case should be limited to information
the Attorney General could have considered when writing the ballot titles.
          The Attorney General’s arguments are unpersuasive. To the extent the Attorney General
argues he is prejudiced by our consideration of the expert’s testimony, he did not oppose Idahoans
United’s motion to expedite, move for expedited discovery concerning Dr. Shulman’s report, or
move for additional time to submit an opposing expert declaration. We observe that the Attorney
General had more time to obtain an expert declaration than Idahoans United. Idahoans United only
had twenty days to file its petition after receiving the ballot titles. I.C. § 34-1809(3)(a). After this
Court granted the motion to expedite and set a briefing schedule, the Attorney General received
an extension for the due date to file a response brief. The Attorney General thus had over a month
to obtain a declaration from an opposing expert, which exceeded the twenty days Idahoans United
had to prepare its expert’s declaration. We find no prejudice to the Attorney General in this
circumstance.
          Nor has the Attorney General cited any rule of evidence precluding admission of the
declaration or constraining our ability to consider it. In fact, when exercising our original
jurisdiction, this Court often reviews evidence submitted in declarations so long as the testimony
complies with the Idaho Rules of Evidence. See, e.g., Planned Parenthood Great Nw. v. State, 

, 398–99, 

, 1156–57 (2022); Reclaim Idaho v. Denney, 

,
416–17, 

, 170–71 (2021); Ybarra v. Legislature by Bedke, 

, 907–08,

, 426–27 (2020). We therefore will consider the declaration of Idahoans United’s
expert.
          However, nothing in the testimony of Idahoans United’s expert alters our conclusion that
the short title’s use of “fetus viability” substantially complies with section 34-1809. Idahoans
United’s expert opines that the term “fetal” would be less likely to prejudice the Initiative. As
previously discussed, the terms “fetus” and “fetal” are different parts of speech concerning the



                                                  23
same concept, so the meanings of the two phrases are substantially the same. As a result, we cannot
conclude that fetus viability does not substantially comply, but fetal viability would. It bears
repeating that we are not employing a de novo standard of review, and that it is not our role to
determine whether the Attorney General used the best language for the short title. See Open
Primaries, 172 Idaho at 486, 533 P.3d at 1262 (“While we understand that Petitioners would prefer
different language, ‘it is not the Court’s role to find another way or the best way to draft a long
title[.]’ ” (quoting Buchin, 

, 

)).
   2. The short title fails to substantially comply with the distinctive and comprehensive
      requirement.
       Idahoans United also argues that the short title is not distinctive and comprehensive
because it omits two important characteristics of the Initiative: the right to abortion in medical
emergencies and the right to privacy. The Attorney General contends that the short title is
distinctive because it highlights the “[I]nitiative’s most distinctive change to Idaho law.” He claims
that the Initiative includes too many distinctive features to fit in a twenty-word short title, but that
the short title properly sets forth the general topic of the Initiative and informs potential signers of
what they would be sponsoring.
       “In drafting the short title, the Attorney General must, by force of circumstances, analyze
and appraise the initiative in order to determine what the initiative means and its distinctive
characteristics. The short title is to be comprehensive in nature.” Buchin, 

, 

 (emphasis added) (citing In re The Pet. of Idaho State Fed’n of Labor (AFL), 

, 

 (1954)). “The Court has defined ‘distinctive’ as a statement that would
refer to that which would distinguish one thing as it related to other things.” Id. at 272, 

 (citing AFL, 

, 

). “[I]n order to be distinctive, a short title
must communicate the chief characteristics of the initiative—including, when necessary how the
initiative proposes to alter current law.” Open Primaries, 172 Idaho at 482, 533 P.3d at 1278 (first
citing Buchin, 

, 

; and then citing Am. Civ. Liberties Union, Idaho
Chapter v. Echohawk, 

, 

 (1993)). “When assessing the
sufficiency of a short title, the fundamental inquiry is whether the short title sets forth the
characteristics which distinguish this proposed measure and expeditiously and accurately acquaint
the prospective signer with what he or she is sponsoring.” Open Primaries, 172 Idaho at 482, 533
P.3d at 1278 (cleaned up) (quoting Echohawk, 

, 

).



                                                  24
       The Attorney General claims that there are at least ten key characteristics in the Initiative
and they cannot all be included in the short title. In contrast, Idahoans United argues that there are
three key characteristics in the Initiative and that the short title fails to acknowledge two of them.
We conclude that the Initiative contains four distinctive characteristics because it proposes four
changes to existing Idaho law:
   •   It establishes a statutory right to abortion before the viability of the fetus.
                 Idaho law currently criminalizes the termination or attempted termination of a
       clinically diagnosable pregnancy except when “necessary to prevent the death of the
       pregnant woman” or during the first trimester in certain cases of rape or incest. I.C. § 18-
       622(2)(a)(i). The Initiative would create an unfettered right to abortion prior to fetal
       viability, which the Initiative defines as the point when “the fetus has a significant
       likelihood of sustained survival outside of the uterus without extraordinary medical
       measures.”
   •   It establishes a statutory right to abortion after fetal viability to protect the health of the
       mother.
                 As discussed above, existing Idaho law only permits the termination of a clinically
       diagnosable pregnancy in limited circumstances. I.C. § 18-622(2)(a)(i). The Initiative
       proposes to change Idaho law by allowing abortions after fetal viability if continued
       pregnancy may “place the health of the pregnant patient in serious jeopardy,” “cause
       serious impairment to a bodily function,” or “cause serious dysfunction of any bodily
       organ.”
   •   It establishes statutory protections for healthcare providers.
                 Idaho law currently states it is a crime to perform or attempt to perform an abortion.
       I.C. § 18-622(1). Further, healthcare professionals who perform, attempt to perform or
       assist in performing an abortion may have their professional licenses suspended. Id. The
       Initiative would limit the criminal and licensure liability of healthcare providers: “[i]n no
       case may reproductive health care provided consistent with this act by a health care
       provider be a basis for professional discipline, civil liability, or criminal liability.”
   •   It establishes a statutory right to freedom in making reproductive healthcare decisions.




                                                  25
                The Initiative creates a “right to reproductive freedom and privacy,” which includes
        “the right of privacy in making personal decisions about reproductive health care in
        consultation with a health care provider.”
        We conclude that the Attorney General’s short title fails to capture two key characteristics
of the Initiative: the expanded right to an abortion post-viability and the limitations on healthcare
provider liability. In doing so, the short title indicates that the Initiative only concerns two changes
to Idaho law: a right to abortion up to fetal viability and a right to make reproductive healthcare
decisions. As a result, the short title is misleading and fails to “accurately acquaint the prospective
signer with what he or she is sponsoring.” See Open Primaries, 172 Idaho at 482, 533 P.3d at 1278
(cleaned up) (quoting Echohawk, 

, 

).
        However, we do not agree with Idahoans United that the short title fails to accurately
capture the right to privacy aspect of the Initiative. The short title provides that the Initiative
establishes “a right . . . to make reproductive decisions regarding one’s own body.” In comparison,
the Initiative defines the right to reproductive freedom and privacy as “the right to make personal
decisions about reproductive health care that directly impact the person’s own body.” The short
title language is very similar to the Initiative’s definition of the right to privacy. We conclude that
the short title therefore accurately captures the right to privacy aspect of the Initiative.
        We are not persuaded by the Attorney General’s argument that the short title is
substantially compliant with the distinctiveness requirement because it includes the “general topic”
of the Initiative. Citing our decision in Echohawk, the Attorney General claims that the short title
does not need to be “all-encompassing” to be distinctive. Our decision in Echohawk is
distinguishable.
        In Echohawk, the petitioners filed an initiative that proposed several changes to then-
existing Idaho law. 

, 

. The Court identified four distinctive
elements of the initiative:
        the prohibition of granting homosexuals “minority status,” the prohibition of
        “same-sex marriages” and “domestic partnerships,” restrictions against discussing
        homosexuality in the public schools, and restrictions against the expenditure of
        public funds for certain purposes relating to homosexuals.

 The Attorney General’s short title stated: “An act establishing state policies regarding
homosexuality.” 

, 

. The Court found that the short title included the




                                                  26
distinctive characteristic of the initiative that “it would establish various state policies towards
homosexuality.” 

, 

.
       In Echohawk, the Court specifically noted that the short title captured the distinctive
characteristic of the initiative, which was to establish state policies relating to homosexuality. 

This action presents a different situation. Here, because the short title only identifies two
distinctive characteristics, it suggests that those are the only two changes to Idaho law proposed
by the Initiative. While the Attorney General’s short title in this case may identify what he believes
to be the Initiative’s most distinctive changes, the Initiative proposes to change Idaho law in other
significant ways. Different people may find different aspects of the Initiative to be the most
distinctive. For instance, the most important characteristic of the Initiative to healthcare providers
may be that it limits their liability in certain circumstances. Another group may find the most
distinctive feature to be the expanded right to an abortion after fetal viability to protect the health
of the mother. However, the short title fails to alert a prospective signer to either of these proposed
changes to Idaho law.
       We acknowledge that fitting the distinctive characteristics of an initiative into twenty
words is a challenging task. Idaho law, however, has long required that the short title be distinctive
and comprehensive. AFL, 

, 271 P.2d at 710 (“[T]his short title . . . must also be
distinctive.”); Echohawk, 

, 

 (“[T[he fundamental inquiry is
whether the short title is ‘distinctive.’ ”); Buchin, 

, 

 (“The short
title is to be comprehensive in nature.”). While Echohawk provides one example of how this may
be done for a short title with multiple distinctive elements, the Attorney General is not constrained
to the method used in Echohawk. It may be possible to include all four characteristics into a twenty-
word short ballot title. The Attorney General is free to exercise his discretion in writing the short
ballot title so long as he substantially complies with the statutory requirements in a manner
consistent with this opinion.
D. The long title substantially complies with Idaho Code section 34-1809.
       The Attorney General’s long ballot title states:
               The measure seeks to change Idaho’s laws by introducing a right to
       reproductive freedom and privacy including a right to abortion up to the point of
       the fetus’s ability to survive outside the womb. After fetal viability, there would be
       no general right to abortion except in cases of “medical emergency.” The “medical
       emergency” exception would expand Idaho’s current life exception and allow
       abortions when pregnant women face complicating physical conditions that


                                                  27
        threaten their life or health, “including serious impairment to a bodily function” or
        “serious dysfunction of any bodily organ or part.”
               The proposed measure codifies a right to make reproductive decisions,
        including contraception, fertility treatment, and prenatal and postpartum care. This
        includes a “right of privacy” in making these decisions. The measure seeks to
        prevent the state from enforcing certain abortion laws protecting the life of the
        unborn child. It would also impose a requirement that any restrictions on
        reproductive decisions, including abortion prior to fetus viability, must be
        “narrowly tailored to improve or maintain the health of the person seeking
        reproductive health care.” The measure would also prevent the state from
        penalizing patients, healthcare providers, or anyone who assists in exercising the
        proposed right.
        Idahoans United argues that the long title is prejudicial because “fetus viability” is
“uncommon and potentially politically charged terminology.” It further argues that the long title
is confusing because it uses the phrases “fetus viability” and “fetal viability” interchangeably.
        Idaho Code section 34-1809 tasks the Attorney General with writing a long title
“expressing in not more than two hundred (200) words the purpose of the measure.” I.C. § 34-
1809(2)(d)(ii). “[U]nlike the short title, the long title is not required to be distinctive or to use
language by which the measure is commonly referred to or spoken of.” Open Primaries, 172 Idaho
at 487, 533 P.3d at 1283. It bears repeating that “[i]t is not the Court’s role to find another way or
the best way to draft a long title, but rather to examine the Attorney General’s language and ask
whether it expresses the ‘purpose of the measure’ without being argumentative or prejudicial.” Id.
        For the reasons previously discussed, we hold that the phrase “fetus viability” substantially
complies with the statutory requirement that the language of the long title not prejudice the
Initiative. We further hold that the use of both “fetal viability” and “fetus viability” in the long title
does not create confusion. As previously noted, the terms “fetus” and “fetal” are different parts of
speech describing the same concept and as a result the use of both phrases is not confusing. We
hold that the long title substantially complies with Idaho Code section 34-1809.
E. We retain jurisdiction of this matter and issue writs of mandamus ordering DFM to
   provide a new FIS and ordering the Attorney General to provide a new short ballot title
   to this Court for review.
        Having determined that the FIS and the short ballot title fail to substantially comply with
Idaho law, we now turn to the appropriate remedy. Idahoans United asks this Court to certify the
FIS and short ballot title drafted by Idahoans United. In the alternative, it asks us to issue writs of
mandamus to DFM and the Attorney General directing them to issue an FIS and a short ballot title



                                                   28
in accordance with Idaho law. We decline to certify the FIS or the ballot titles provided by Idahoans
United and instead issue writs of mandamus to DFM and the Attorney General.
        As in Open Primaries, the most appropriate remedy in this action is to retain jurisdiction
of this matter and order DFM to provide a statutorily compliant FIS and order the Attorney General
to provide a statutorily compliant short ballot title. See Open Primaries, 172 Idaho at 490, 533
P.3d at 1286. It is not appropriate at this stage for the Court to dictate the details of either document
or draft a short ballot title itself. However, given that the people’s constitutional right to direct
legislation reserved in Article III, section 1 of the Idaho Constitution is at issue, and the time
concerns expressed by Idahoans United, we will retain jurisdiction to ensure a timely resolution of
this action. Id.
        We understand that DFM may require some time to gather the necessary information and
input to calculate the fiscal impact of the Initiative’s proposed changes to Idaho law. Accordingly,
we will give DFM seven calendar days to prepare a new FIS. We order DFM to provide a new FIS
that complies with Idaho Code section 34-1812 to this Court by 4 p.m. MDT on June 23, 2025. To
avoid further litigation concerning the reasonable basis for any estimated impact that may be
described in the FIS, we also order DFM to submit a sworn declaration by the preparer of the FIS
describing the process utilized, including the evidence gathered and the assumptions utilized to
create the FIS. We will review the FIS and supporting declaration to determine whether it
substantially complies with section 34-1812. No further briefing or oral argument will be granted
concerning the new FIS.
        We order the Attorney General to provide a new short title to this Court. In the interest of
consistency, we will also grant the Attorney General seven calendar days to prepare a new short
ballot title. We order the Attorney General to provide a new short ballot title that complies with
Idaho Code section 34-1809 to this Court by 4 p.m. MDT on June 23, 2025. We will review the
short ballot title to determine whether it substantially complies with the statute. No further briefing
or oral argument will be granted concerning the short ballot title.
F. We decline to grant attorney fees to Idahoans United.
        Idahoans United seeks attorney fees under Idaho Code section 12-117(1). Idaho Code
section 12-117(1) allows the prevailing party in a proceeding between a person and a governmental
entity to be awarded attorney fees if the “nonprevailing party acted without a reasonable basis in
fact or law.” I.C. § 12-117(1); Open Primaries, 172 Idaho at 491, 533 P.3d at 1287. This Court



                                                   29
“examines the prevailing party question from an overall view, not a claim-by-claim analysis.”
Open Primaries, 172 Idaho at 491, 533 P.3d at 1287 (quoting Dep’t of Transp. v. Grathol, 

, 

 (2015)).
          Considering the mixed results in this action, and taking an overall view of the proceedings,
we decline to grant attorney fees to Idahoans United against DFM. The claims against DFM
presented an issue of first impression and DFM’s arguments were reasonable. We also decline to
grant attorney fees to Idahoans United against the Attorney General. Both parties prevailed in part
and therefore we hold there is no prevailing party for purposes of attorney fees.
                                       V.    CONCLUSION
          For the reasons discussed herein, we dismiss the Petition against the Secretary of State,
partially grant the Petition for writs of mandamus against DFM and the Attorney General, and
deny the Petition for writs of certiorari.
          We retain jurisdiction of this matter and order DFM to provide a new FIS that complies
with Idaho Code section 34-1812 to this Court by 4 p.m. MDT on June 23, 2025. At that time,
DFM shall also file with this Court a sworn declaration by the preparer of the submitted FIS that
explains the process utilized, evidence gathered, and assumptions used to create the new FIS. We
order the Attorney General to submit a new short ballot title that complies with Idaho Code section
34-1809 to this Court by 4 p.m. MDT on June 23, 2025. No party is awarded costs or attorney fees.

          Chief Justice BEVAN, and Justices BRODY, MOELLER, and MEYER CONCUR.



   ON THE SUBMISSION OF A NEW FISCAL IMPACT STATEMENT AND A NEW
                        SHORT BALLOT TITLE

ZAHN, Justice.
          DFM timely submitted a new FIS along with a sworn declaration by the preparer of the
submitted FIS in accordance with this Court’s June 16, 2025, opinion and order. The new FIS
states:
          Summary of Fiscal Impact Statement
          The State estimates the initiative would increase state expenditures between $3,100
          and $7,800 annually, less than 0.001% of the state share of Idaho’s Medicaid
          budget. This impact is derived from the costs of treating chemical abortion
          complications for women enrolled in Idaho’s Medicaid program. Medicaid covers
          medically necessary services to treat complications from all abortions. It is


                                                  30
       anticipated that as legal abortions increase, the complications will also increase.
       This will likely result in an increase in Medicaid covered services and expenditures
       to treat complications from chemical abortions, which the State has reliable and
       readily available data to support.
       Detailed Statement of Fiscal Impact Including Assumptions
       Based on the amount of reliable data gathered by the Division [sic] Financial
       Management (DFM) and the outcome of the initiative (if passed), DFM limited its
       assumptions about any increase in costs to the state to those costs arising from the
       treatment of Medicaid recipients for chemical abortion complications. DFM does
       not have reliable and readily accessible data to reasonably calculate the fiscal
       impact attributable to the complications for surgical abortions.
       Based on data provided by Department of Health and Welfare (DHW), DFM
       considered the number of childbearing women on Medicaid in 2021 which was
       97,055. This represents about 25% of the total Idaho population for women in this
       same age group. DFM assumed that, as a result of this initiative, the number of
       chemical abortions conducted annually would increase to the levels prior to 2022,
       the year of the U.S. Supreme Court’s decision returning the regulation of abortion
       to the States. Based on the number of chemical abortions performed in Idaho using
       the 2021 data from the vital records report (approximately 1,180), DFM assumed
       25% (approximately 300) of those individuals were Medicaid recipients.
       Taking the number of Medicaid recipients who would receive a chemical abortion,
       DFM assumed that 2% - 5% of those chemical abortions would result in
       complications. DFM assumed this based on information provided in (1) the United
       State’s [sic] Food and Drug Administration’s warning label for the Mifeprex and
       (2) studies related to abortion complications that were published on the National
       Library of Medicine website, which DHW provided to DFM.
       Based on the claims for complications from chemical abortions provided by DHW
       for 2019 and 2022 claims data, DFM applied an average per person claim cost and
       added a 4% medical inflation year over year to account for current medical costs in
       FY2026. Based on that calculation, DFM assumes that about 300 individuals on
       Medicaid in Idaho could receive a chemical abortion and of those, 6 to 15
       individuals could have complications from that chemical abortion with an average
       claim cost of about $531 (state portion of the cost). Based on the process utilized,
       evidence readily available and gathered, and assumptions used to create the fiscal
       impact statement, total expenditures for the state would range from $3,100 to
       $7,800 per year.
       While the specific fiscal impact to the state’s expenditures is difficult to quantify,
       DFM cannot in good faith conclude that the proposed initiative will have no fiscal
       impact on state expenditures.
       Having reviewed the new FIS and accompanying declaration, we conclude that the new
FIS is consistent with the views expressed in our prior opinion dated June 16, 2025. We also
conclude that the FIS substantially complies with the requirements of Idaho Code section 34-1812.



                                                31
       The Attorney General timely submitted a new short ballot title in accordance with this
Court’s June 16, 2025, opinion and order. The revised short ballot title states:
       Measure creating right to abortion before fetus viability, and post-viability to
       protect health; right to privacy; healthcare provider liability protections.
       Having reviewed the new short ballot title, we conclude that it is consistent with the views
expressed in our prior opinion dated June 16, 2025, and that it also substantially complies with the
requirements of Idaho Code section 34-1809. Therefore, we certify the new short ballot title to the
Idaho Secretary of State as required by Idaho Code section 34-1809(3)(c).

       Chief Justice BEVAN, and Justices BRODY, MOELLER, and MEYER CONCUR.




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