MY TURN: Prop 1 fails review
After much arm-waving and bumper sticker arguments, I decided to review the actual text of Proposition 1. To my knowledge, no attorney has offered an analysis for the voter. Based on my reading, it should fail for vagueness, complexity, unfairness and its need for new executive rules.
Initially, there are no fewer than 21 typographical errors, some of which are substantive and may require a lawsuit to resolve. Even for the non-substantive errors, one has to question what kind of thinking would result in such sloppy writing. For example, proposed amended section 34-715 has duplicate numbering of its subsections. On these points alone, I would vote NO on Proposition 1 until it was properly written.
Underscoring the sloppy writing is the fact that it repeals Idaho Code section 34-903B, which today prohibits ranked choice voting in Idaho. This is no Progressive Era or New Deal statute, but was passed by the Legislature in 2023. I heard no hue and cry, saw no demonstrations or read any newspaper editorials or online complaints about that 2023 law, but suddenly the people need to bypass the Legislature to repeal it? The repeal of existing law is by referendum, not by initiative, and those methods of changing the law appear to require separate petitions and separate processes, see Idaho Code section 34-1801A. It is likely unlawful to combine a referendum and an initiative, because the arguments and effects about a new law will be distinct from arguments and effects of repealing of an existing law. To avoid voter confusion, Idaho has a single subject rule for legislation. I suspect this initiative cannot be a referendum too, which is another reason for voting NO on Proposition 1.
Proposition 1 has been offered as an open primaries initiative. My review indicates it creates two primaries and two general elections that use different methods. One primary is for precinct committeemen at the county level, compare sections 34-702A, 34-703, and 34-704, and another primary is for all other offices, except judges. If not true, why have both a “primary and top four primary?” Then, Proposition 1 creates two general elections, because if only two candidates advance from a top four primary, then “instant runoff voting” [so-called Ranked Choice Voting] for the general election does not apply. There have to be three candidates to use instant runoff voting, see new section 34-1218(2). The election systems under Proposition 1 are too complex, and will trigger heavy lawsuit costs, but only for those individual candidates who can afford suits in Idaho or federal courts of law. As one who has argued Idaho election law in the courts, Proposition 1 invites costly lawsuits.
Rather than argue on substantive policy issues, those who cannot enunciate their own party platform sufficient to muster a challenge to Republicans in Idaho give us Proposition 1, the so-called “open primaries initiative.” I cannot understand why the freedom of association of Republicans must be discarded in favor of the dilution of political parties. The proposed new Idaho Code section 34-118 states the “top four primary elections do not determine any party’s nominee and candidates who advance from a top four primary election to a general election are not considered nominees of any political party.” Therefore, why have party affiliations at all?
When “instant runoff voting” is defined in the new Idaho Code section 34-119, it is said to be “the method of casting and tabulating votes described in section 34-1218,” which is also a new section. The misleading part in section 34-119 is the sentence that states, “voters may rank candidates by order of preference, each ballot counts as a single vote for its highest-ranked active candidate,” but the candidate receiving the fewest votes is eliminated, and votes for that candidate are assigned upward “to each ballot’s next-highest ranked active candidate.” In short, any vote made after the first choice will be reassigned by the process of tabulation to the next least-favored candidate. Why would Idaho purposefully assign votes to the least favored candidate?
After reading the proposed amended Idaho Code section 34-904, and the proposed amended Idaho Code 34-904A, it is difficult to see whether Idaho has two primaries or one. It appears that there will be two ballots, one for precinct committeemen of parties, and a second where all the other candidates will be mixed in together. To further dilute political party policy and principle cohesiveness and thus articulable challenges, a political party may currently allow electors designated as unaffiliated, and electors actually registered to a different political party to vote in that party’s primary election, see proposed amended Idaho Code section 34-904A(2). Why a party would ever do this after Proposition 1 is unknown. On the other ballot, “Every qualified elector shall be allowed to vote in the top four primary election, regardless of party affiliation.” This is the so-called open primary.
An open primary means that political party activities will not focus on candidates challenging each other over policy or principles. It means that Idaho will cement into law a uni-party voting system, where policy and principles are irrelevant. A fight over policy and principles will waste time, because interlopers with other policies and principles will intervene to create a mish-mash. If the candidate with the fewest votes is cast aside, and those votes are transferred to the next highest candidate, then the weakest candidates on policy and principles will be preferred. Candidates who have little knowledge of policy, and those who lack principles should not gain an advantage. This law would harm Idaho, and Proposition 1 should fail, so policies and principles are not destroyed in favor of pablum.
The ballot disclaimers in proposed Idaho Code section 34-904(4) and 34-906(3) and (5) confirm that a candidate’s chosen affiliation “does not imply that the candidate is nominated or endorsed by the political party or political group or that the political party or political group approves of or associates with that candidate, but only that the candidate is registered as affiliated with the party or group.” In short, you can still register for any party, which is traditionally a public representation about your policy positions and principles. But, the fine print indicates being associated with a political party means nothing. If a party does not nominate a candidate, or endorse a candidate, or approve of a candidate, or associate with a candidate, then a cogent voter should recognize that the candidate does not represent that party’s policy positions and principles. Proposition 1 encourages wolves in sheep’s clothing.
The disclaimer regarding federal presidential and vice-presidential candidates found in subsection (5) of section 34-906 is hash, because some candidates for those two offices are official nominees of their political party. Proposition 1 is poorly drafted law, and that subsection (5) should give a clearer disclaimer.
Proposed amendments to Idaho Code section 34-1201 are confusing. In subsection 1, the judges count the ballots, but in amended section 34-1203(1) “the election personnel” tally the votes cast. Which is it? We know who the judges are and they can be held personally accountable, but election personnel? Who are these people? The judges should also tally the votes cast.
In the new subsection (5) to Idaho Code section 34-1201, elections shall be canvassed. The problem is that canvassing is traditionally a confirmation process by a board of county commissioners or other entity and not a tabulation process by election office personnel — or by a voting machine. A canvass confirms the tabulation, see 34-1207, “After the canvass of the votes for each office, the board shall cause the county clerk to complete a canvass report, which shall then be signed by each member of the board,” or 34-1711(1): “The board of county commissioners shall act as the board of canvassers.” The definition of the word “canvass” is being changed from confirmation of the vote counts by a board of county commissioners to a tabulation function done by unaccountable people or machines. No argument is made as to why this needs to happen, or how this change benefits Idaho.
Proposed amended Idaho Code section 34-1215 confirms that in a general election for an office with only two candidates will not be conducted by instant runoff voting. Only in general elections where an office has three or more candidates does instant runoff voting occur, see new section 34-1218(2). However, the lack of clarity in 34-1215 was avoidable if sentences one and two were combined and shortened. Proposition 1 is poorly written, and it should not become law in Idaho.
Proposition 1 dilutes political activity away from substantive discussion of policy and principle such that tie votes are resolved by a coin toss, or the constitution if the election was for an executive branch office, see proposed amended section 34-1216. If candidates were articulate enough to make their substantive case, then tie votes should never happen, because the best argument would win. In cases of tie votes for a state office, the constitutional provision should be the only tie breaker. Section 2 of Article IV of the Idaho constitution is always preferable to a coin toss, because it keeps the political discussion alive in the state legislature. The provision states that “if two or more [candidates] shall have an equal and the highest number of votes for any one of said offices, the two houses of the legislature at its next regular session, shall forthwith, by joint ballot, elect one of such persons for said office.” A legislative check on voter tie outcomes would serve Idahoans better than a coin toss. This resolution could happen at the county level too.
A new section brings the so-called Ranked Choice Voting, called in Proposition 1 “instant runoff voting.” Proposed new section 34-1218 gives the procedures. In subsection (1)(a) it defines “Active Candidate,” but does not reconcile that definition with the Jack-In-The-Box revival found in section 34-715(2). It is difficult to tell when a candidate has been eliminated due to this revival feature.
The proposed new section 34-1218 is nefarious. It mandates that as rounds of tabulation are done, candidates receiving the fewest votes are eliminated, and then those votes are given to the “next highest-ranked active candidate,” see subsections (3)(b) and (3)(c). The system mandates middle-of-the-road candidates have a better chance than the highest vote getter, who must defend his pile of votes against the combined votes of all other candidates in a given round. This is done by machine tabulation, and thus political discussion between candidates to elect the superior candidate is avoided. Why the jihad against political competition?
Worse, Idaho Code section 34-1218 at subsection (5)(a) requires a lottery to be held “if two or more candidates are tied with the fewest votes and tabulation cannot continue until the candidate with the fewest votes is defeated.” Let’s be clear, no one is defeated, but eliminated, because there is no contest when decisions are made “by lot.” In that same subsection (5) at (b) tie votes in a final round of tabulation will be broken “as provided by law” or by the Idaho constitution. So, we have coin tosses, lotteries, “as provided by law” (so we need more new law), the Idaho constitution, and the Secretary of State can make new rules to resolve our political disagreements. It sounds like the expectation of Proposition 1 is that voters are too stupid to not have tied elections, because it was all bumper sticker politics in the primaries and the general elections. By this new system, the ultimate decider of who should occupy an office in the case of a tie could be the Secretary of State using whatever rules he creates, see new section 34-1218(7).
I conclude Proposition 1 is poorly drafted, undermines political parties and thus political discussions on policy and principles and is inferior to the comparatively simple voting methods Idaho uses today. I recommend a vote against Proposition 1.
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Art Macomber ran for state attorney general in 2022 after 16 years practicing law in Idaho. Comments can be sent to art@artmacomber.com.