Idaho open primary supporters legally challenge AG Raúl Labrador’s ballot titles Signature drive on hold for initiative while open primary lawsuit plays out in court

By Clark Corbin Idaho Capital Sun

Supporters of the proposed open primary ballot initiative filed a legal challenge asking the Idaho Supreme Court to throw out ballot titles for the initiative assigned by Attorney General Raúl Labrador’s office.

In the filing July 10, the groups Idahoans for Open Primaries and Reclaim Idaho alleged that Labrador’s office provided misleading ballot titles.

“The titles assigned by the attorney general contain material inaccuracies concerning the nature and purpose of the initiative and reflect his public opposition to it,” the court filing reads.

If successful, the ballot initiative would end Idaho’s closed political primary elections and replace them with one primary election that all candidates can run in and all voters can vote in, regardless of party affiliation.

In the filing, Idahoans for Open Primaries and Reclaim Idaho ask the Idaho Supreme Court to instead use ballot titles they have written to describe the initiative. Supporters of the initiative also asked the Idaho Supreme Court to expedite the case and extend the deadline to gather signatures to qualify the ballot initiative for the November 2024 general election.

“Even under an expedited litigation schedule, this necessary challenge to the attorney general’s deficient ballot titles causes great hardship as it shortens the already limited time to circulate the initiative petition for signatures,” Idahoans for Open Primaries and Reclaim Idaho wrote in the filing. “This delay alone may doom the possibility of the initiative reaching the ballot.”

Idaho AG’s Office says it will defend ballot titles in court

Meanwhile, the Idaho Attorney General’s Office stands behind the ballot titles.

“As a rule we don’t comment on pending litigation,” Beth Cahill, communications director for the Idaho Attorney General’s

Office wrote in a statement issued July 3. “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.”

Additionally, Labrador has pledged to file a lawsuit challenging the initiative if it 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 June 30 letter to Secretary of State Phil McGrane, which 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.”

What is the disagreement with Idaho’s AG all about?

The challenge is the latest development in a legal dispute between supporters of the open primary initiative and Labrador’s office.

Under the proposed open primary system, the top four vote-getters from the primary would advance to the general election, regardless of party affiliation. The ballot initiative would also change the general election to create an instant runoff, or rankedchoice system. Instead of Idaho’s traditional general election, voters would cast ballots for their favorite candidate in the general election and have the ability to rank the other three candidates in order of preference on the same ballot. If one candidate does not win a majority of the votes, then an instant runoff would be created in which the candidate with the fewest votes would be eliminated and their votes would instead be transferred to the voter’s second-choice candidate. That 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 elections or election days because the preferences on their ballots would decide any instant runoffs.

Labrador’s office said the initiative violates a section of Idaho law that stipulates ballot initiatives can only deal with one subject, because the initiative deals with primary elections and general elections.

Open primary ballot initiative supporters disagree. They say the initiative deals with one subject: elections. They disagree with the AG’s legal analysis and say that Labrador should have recused himself from the initiative process after he posted a May 2 tweet about the initiative saying, in part, “Let’s defeat these bad ideas coming from liberal outside groups.”

The ballot titles are important because they describe to the public and voters what the initiative would do and the ballot titles are the last remaining unresolved issues before open primary supporters could begin collecting signatures to qualify the initiative for the election.

The Idaho Secretary of State’s Office cleared the supporters to begin collecting signatures on June 30, but the signature drive is on hold while the legal challenge is being resolved, Reclaim Idaho co-founder Luke Mayville said.

Supporters of the initiative have until May 1, 2024 to turn in signatures from 6% of Idaho voters and signatures of 6% of voters in 18 of Idaho’s 35 legislative districts. But they cannot move forward with the signature drive until ballot titles are settled.

If supporters gather enough verified signatures and the ballot initiative qualifies for the November 2024 election, it would take a majority of votes to approve it.

What do the ballot titles say?

There are short ballot titles and longer general ballot titles up to

200 words.

The short title assigned by Labrador’s office says:

“Measure to (1) replace voter selection of party nominees with nonparty blanket primary; (2) require ranked-choice voting for general elections.”

The short ballot title supporters of the open primary initiative suggested in the July 10 filing says: “An initiative to allow all Idaho voters the right to participate in open primary elections and to establish an instant runoff general election.”

The longer ballot title assigned by Labrador’s office is available online.

This story was produced by Boise-based nonprofit news outlet the Idaho Capital Sun, which is part of the States Newsroom nationwide reporting project. For more information, visit idahocapitalsun.com.