Open primary supporters to legally challenge Idaho AG

Supporters of a proposed open primary ballot initiative announced Monday they are challenging the ballot titles assigned earlier this month by the office of Idaho Attorney General Raúl Labrador.

The challenge represents the latest development in a dispute between supporters of the initiative and the Idaho Attorney General’s Office.

A coalition of groups called Idahoans for Open Primaries is backing the initiative, which would do away with the closed primary elections and replace them with an open primary that all candidates and voters could participate in, regardless of party affiliation.

Supporters of the open primary initiative are holding off on launching their signature collections until the court issues a ruling on the ballot titles.

To qualify the initiative for the ballot, supporters have until May 1 to meet the requirements to gather signatures from at least 6% of registered statewide voters (about 63,000 signatures) and gather signatures from at least 6% of voters in 18 of the state’s 35 legislative districts.

If the initiative qualifies, it would appear on Idaho voters' ballots during the November 2024 general election. If the initiative qualifies for the ballot, it would take a majority of Idaho voters to approve it.

Under the proposed new system, the top four vote-getters from the primary election would advance to the general election, regardless of party affiliation.

The initiative would also change the general election to create an instant runoff election and ranked-choice voting. Under that system, Idahoans would vote for their first choice of candidate and then have the ability to also rank the three remaining candidates in order of preference on the same ballot. If one candidate wins a majority of the votes, that candidate would be elected the winner. If not, the candidate with the fewest votes would be eliminated and their votes would instead be transferred to voters’ second-choice candidate. The process would continue until one candidate has a majority of votes and is elected the winner.

Idahoans would only vote once; there would not be multiple rounds of voting.

Attorney General’s Office says initiative conflicts with Idaho’s state law

On May 31, Labrador’s office issued a review of the initiative that raised concerns about the initiative conflicting with the Idaho Constitution and Idaho law. The AG’s review said the initiative violates a section of state law that says initiatives shall deal with only one subject.

Labrador’s office said the initiative makes changes to both the primary election and the general election, which are two different subjects.

The open primary initiative supporters disagreed, saying the initiative deals with one subject: elections.

Then on Friday, the Idaho Secretary of State’s Office cleared the open primary supporters to begin collecting signatures to qualify the initiative for the November 2024 general election.

But supporters of the open primary ballot initiative allege that the ballot titles contain information that is false or misleading. They also allege Labrador injected his own personal views opposing the ballot initiative into the process. On May 2, Labrador posted a tweet about the initiative where he wrote, in part, “Let’s defeat these bad ideas coming from liberal outside groups.”

“The attorney general is taking a very political approach rather than respecting the law,” Todd Achilles, a volunteer leader with the Idaho Task Force of Veterans For Political Innovation said in a telephone interview. The Idaho Task Force of Veterans for Political Innovation is a member of the Idahoans for Open Primaries coalition backing the ballot initiative.

The Attorney General’s Office disagreed and said it stands by the ballot titles and review.

“As a rule, we don’t comment on pending litigation,” Communications Director Beth Cahill said in a written statement Monday afternoon. “Any statement we have to make was provided in our cover letter provided to the Secretary of State’s Office with our letter of transmittal: AG Labrador has furnished a ballot measure title with a true and impartial statement of the purpose of the measure and without prejudice or partisanship, consistent with his requirements under Idaho law. If it is required, we will be happy to defend the AG’s fulfillment of his statutory duties in litigation.”

Under Idaho law, anybody who is dissatisfied with ballot tiles may appeal to the Idaho Supreme Court.

Open primaries coalition says Labrador should recuse himself from process after tweet

Jim Jones, a former chief justice of the Idaho Supreme Court who has reviewed the open primary initiative and is working to build support for the initiative among Republican former elected officials, also said the ballot titles are misleading to the public.

“The main problem I see is Labrador is setting it up so it will look like there are two subjects on the initiative, which is pure baloney,” Jones said in a telephone interview. “We’re going to ask the court to substitute what (Labrador) has proposed, and we want instead to have an impartial statement of what is contained in the initiative.”

Jones added that Labrador should have recused himself from being involved with the initiative after posting the May 2 tweet.

This is not the first time Jones and Labrador have disagreed. Jones broke rank with the Republican Party and served as the treasurer for Labrador’s unsuccessful Democratic challenger Tom Arkoosh last year. Jones has also written columns supporting the initiative and criticizing Labrador.

For his part, Labrador still maintains the ballot initiative violates the rule to deal with one subject, and said his office will sue if the initiative qualifies for the ballot.

“Although we have furnished a ballot tile as required by Idaho statute, for reasons set forth in my certificate of review, we maintain that this petition violates the constitutional and statutory single-subject rule and is therefore ineligible for placement on the ballot,” Labrador wrote in a letter sent to Secretary of State Phil McGrane on Friday that was obtained by the Sun. “We will litigate that objection if and when it becomes ripe — i.e. if the sponsors of the petition seek to have it enrolled on the ballot.”

On June 20, Labrador’s office issued a written statement about the review of the ballot initiative.

“The initiative proponents incorporated many of the recommended changes our office proposed,” the statement read. “It is no secret that Jim Jones has an unhealthy obsession with AG Labrador. His criticisms at this point aren’t grounded in the law but based entirely on his personal biases. If the media is searching for opposing legal views, surely they can find someone more objective.”

Originally published July 3, 2023, by the Idaho Capital Sun.