OPINION: Idaho’s Don Quixote targets the Open Primaries Initiative
Jim Jones
Idaho’s Don Quixote has found another windmill to tilt. Attorney General Raul Labrador has just hauled off and, once again, sued one of his own clients. This time, Labrador is suing Secretary of State Phil McGrane, trying to force McGrane to do something that he can’t do under Idaho law — kill the Open Primaries Initiative. To make matters even worse, Labrador is also trying to defend McGrane in the lawsuit. That appears to be a serious conflict of interest.
The Idaho Supreme Court was likely surprised when it saw the papers Labrador filed on behalf of McGrane. The Court issued an order on July 28, demanding that Labrador show why he should not be disqualified from representing McGrane. It gave him one day to make the showing. Such an order is almost without precedent.
Labrador has a glaring conflict of interest under ethical rules that all Idaho lawyers are required to follow. Simply put, a lawyer cannot represent both sides of a lawsuit, especially where the lawyer is personally interested in the outcome. Labrador’s political future hinges on defeating the OPI. He wants to keep the closed Republican primary because it strongly favors him and the Party’s other extreme candidates.
Ever since the Republicans closed their primary in 2011, extremists have routinely eliminated reasonable, traditional Republicans in the low-turnout primary election. Labrador, Idaho GOP chair Dorothy Moon and other extremists know that allowing all Idahoans to choose their elected officials will end the extremists’ grip on power.
In his court filings, Labrador tries to justify the use of his own lawyers to defend McGrane by claiming he has implemented “ethical screening procedures.” Pardon me, but Labrador is personally suing McGrane, and he is deeply invested in the outcome of the case. His lawyers on both sides of the suit are smart enough to know who pays them. And they know the boss desperately needs to win the case. Apparently, none of them had the courage to tell Labrador there was no legal basis for his lawsuit.
Turning to the legal grounds that Labrador asserts in support of his personal side of the case, let’s just say they are non-existent. The Secretary of State has no legal authority to keep an initiative off of the ballot if it meets all of the requirements for certification. The OPI does and, as a matter of fact, it has already been certified.
Labrador falsely claims that OPI supporters deceived petition signers by concealing the fact that it calls for a general election where the winning candidate will be selected in a ranked-choice process. Every petition contained a detailed explanation of the OPI and how it works. OPI proponents have taken pains to describe how simple it is for voters to rank up to four candidates in their order of preference and how that will produce the most highly regarded winner.
But, speaking of deception, Labrador’s allies in the Legislature are masters at deceptive promotion of legislation. His extremist friends have introduced a profusion of culture war bills and promoted them with the most outlandish claims — libraries are cesspools of filth, teachers are groomers and any number of other deceitful and disgusting accusations. Even though it would be wonderful to bring those tactics to a halt, the courts won’t become involved until any such bill is enacted into law.
Labrador contends that the OPI violates a statute saying that an initiative can “embrace only one (1) subject and matters properly connected with it.” The OPI deals with just one subject — the election process. It is silly to claim that an initiative focused solely upon the election process deals with more than one subject.
Despite all of the deficiencies in Labrador’s lawsuit, the greatest obstacle is the Idaho Supreme Court’s routine denial of challenges to initiatives before they are voted into law. When I was on the Court, we ruled that an initiative can’t be challenged in court until it is approved by voters. If the voters turn it down, that takes care of the matter. If it passes, a challenge might then be made. Idaho’s own Don Quixote should have studied the law before tilting at the OPI windmill. He may end up paying everyone's legal fees.
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Jim Jones is a Vietnam combat veteran who served eight years as Idaho Attorney General and 12 years as a justice on the Idaho Supreme Court. He blogs at JJCommonTater.com.
LINKS:
Once again:
Labrador is suing Secretary of State Phil McGrane:
A statute:
https://legislature.idaho.gov/statutesrules/idstat/Title34/T34CH18/SECT34-1801A/
We ruled that an initiative can’t be challenged in court: