By Clark Corbin, Idaho Capital Sun
The Idaho Supreme Court on Tuesday dismissed Attorney General Raúl Labrador’s challenge to Proposition 1, the ballot initiative that would create open primaries and ranked-choice voting if approved by voters November 5.
Luke Mayville, a spokesperson for the Idahoans for Open Primaries coalition that is sponsoring the ballot initiative, said Tuesday’s opinion represents a big win for voters.
“Today’s decision is a major victory for Idaho voters,” Mayville wrote in a statement to the Idaho Capital Sun. “Attorney General Labrador has once again failed in his attempts to game the system and prevent voters from having a say. Today’s decision guarantees that the people of Idaho, not the attorney general, will decide whether primary elections should be open to all voters.”
Mayville is the co-founder of the group Reclaim Idaho, which put forward the successful Medicaid ballot initiative that more than 60% of Idaho voters supported in 2018.
The Idaho Attorney General’s Office released a statement late Tuesday afternoon saying it is reviewing its options.
“Today the Idaho Supreme Court dismissed our petition on procedural grounds and acknowledged that our allegations about the Open Primaries Initiative are ‘serious’ but must be adjudicated in the district court,” the Idaho Attorney General’s Office wrote. “We appreciate the court’s reasoned analysis of the issues at hand. We are now reviewing our options to show that outside interest groups knowingly misled Idaho voters about the petition they were signing and will continue to defend the people’s right to an initiative process free of deception. We are disappointed that the court did not take up the single subject issue at this time, but are confident that the people of Idaho and the courts will eventually reject this clearly unconstitutional petition.”
On July 24, Labrador filed a challenge with the Idaho Supreme Court seeking to block Proposition 1 from going up for vote. Labrador alleged that signatures gatherers misled the public and fraudulently obtained signatures that were used to qualify the ballot initiative for the election. Labrador also alleged that the ballot initiative violates the Idaho Constitution’s requirement that laws only address one single subject.
However, the Idaho Supreme Court dismissed Labrador’s challenge on procedural grounds on Tuesday without even holding oral arguments on the case.
“Today the Idaho Supreme Court dismisses the attorney general’s petition on procedural grounds,” Idaho Supreme Court Justice Robyn M. Brody wrote in the opinion. “Allegations of fraud in the gathering of signatures in the initiative process are serious. Those allegations, however, must be adjudicated in the district court in the first instance. The attorney general’s petition fundamentally misapprehends the role of this court under the Idaho Constitution and the role of the secretary of state under the initiative laws enacted by the Idaho Legislature.”
The Idaho Supreme Court also said it would not weigh in on Labrador’s allegation that the ballot initiative violates the Idaho Constitution’s single-subject requirement unless voters approve it.
“…(T)hat issue will not be ripe for review, unless and until, Idaho voters approve the initiative at the general election in November,” Brody wrote in Tuesday’s opinion.
In Idaho, ballot initiatives are a form of direct democracy where the people vote on whether to pass a law, completely independent of the Idaho Legislature. It would take a simple majority of the vote to approve the ballot initiative in the November 5 general election.
Each of the other four Idaho Supreme Court justices concurred with Brody’s opinion on Tuesday.
The Idaho Supreme Court noted that its opinion does not prevent Labrador from pursuing his fraud allegations at the district court level.
In a July 31 interview with the Idaho Capital Sun, Idaho Secretary of State Phil McGrane said he was moving forward preparing for the ballot initiative to go up for a vote even as Labrador sought to block it in the Idaho Supreme Court. McGrane said he will continue to move forward unless or until a court orders him to stop. The first absentee ballots in Idaho will be mailed September 21, McGrane said.
Idaho has had a closed primary election law since the Idaho Legislature passed House Bill 351 in 2011. The closed primary law says that political parties don’t have to let a voter vote in the party’s primary election unless the voter formally affiliates with that party.
In Idaho, more than 265,000 of the state’s 1 million registered voters are unaffiliated voters who are not allowed to vote in closed primary elections.
The 2011 law makes it so that primary elections are closed by default, but a political party may instead file paperwork with the state to allow other voters to vote in its primary election. Only the Idaho Democratic Party opened its primary election to other voters, a spokeswoman for the Idaho Secretary of State’s Office previously told the Sun. The Republican, Libertarian and Constitution Party primary elections were all closed.
If a simple majority of voters approve the ballot initiative in the Nov. 5 general election, it would make changes to both Idaho’s primary election and general election.
First, the initiative would repeal Idaho’s closed primary election law. It would replace closed primaries with a nonpartisan top-four primary election that is open to all candidates and all voters, regardless of party affiliation. Under that format, the four candidates with the most votes in the primary election would all advance to the general election, regardless of party affiliation. That means some general election races could feature multiple candidates from the same political party, or even all four candidates from the same political party.
The ballot initiative would also make changes to the general election. If it passes, the ballot initiative would create a ranked-choice voting system for the general election, which is sometimes referred to as an instant runoff. Under that system, voters would vote for their favorite candidate and then have the option of ranking the remaining candidates in order of preference – second choice, third and fourth. Under that system, the candidate with the fewest votes would be eliminated and their votes would be transferred to the second choice of candidate marked on the ballot. That process would continue until there are two candidates remaining and the candidate with the most votes is elected the winner.
Supporters say the ballot initiative will ensure all Idaho voters can vote in primary elections and force candidates to be accountable to a broader section of voters in order to win elections. Opponents, including the Idaho Republican Party and the Republican caucus in the Idaho House of Representatives, say the ballot initiative is overly complicated, will hurt Republican candidates and destroy the principle of one person, one vote.
In a July 3 letter to legislative leaders, McGrane wrote that if Idaho has to replace its vote tabulation systems to process ranked-choice voting ballots, it could cost at least $25 million to $40 million, the Sun previously reported. Mayville and other supporters of the ballot initiative say there is no need to pay to replace vote tabulation systems because there is low-cost software available that could be certified in Idaho to count ranked-choice ballots.