Idaho open-primary supporters press on with ballot initiative, despite AG’s critique

The supporters of a proposed ballot initiative designed to eliminate Idaho’s closed party primary elections and create a new type of general election are moving forward despite a negative legal review by Attorney General Raúl Labrador’s office. 

If it qualifies for the November 2024 ballot and is then approved by a majority of Idaho voters, the initiative would do two main things. 

• It would replace Idaho’s closed primary elections with open primary elections that any voter could participate in, regardless of party affiliation. The new primary election would also be open to political candidates regardless of party affiliation. All candidates would run against each other in the primary election, and the four candidates who receive the most votes would advance to the general election. 
• The initiative would change Idaho’s general elections by creating an instant runoff, or ranked choice, voting system. Under the instant runoff, voters would vote for their first choice of candidate and also be able to rank the other three candidates in their order of preference. If no candidate wins a majority of the votes initially, an automatic process of elimination would begin based on the ranked choices voters marked on their original ballots: the last-place candidate is eliminated and their votes are transferred to the second-choice candidate on each of those ballots, until one candidate emerges as the winner by claiming a majority of the original and transferred votes. 

On Thursday, supporters with the group Idahoans for Open Primaries submitted the final draft of the initiative to the state for the attorney general to give it a ballot title. That is the last major step remaining before supporters of the initiative could begin their signature drive to attempt to qualify the open primary initiative for the 2024 general election. 

In order to qualify the initiative, supporters have until May 1 to gather signatures from 6% of registered voters statewide (about 63,000 Idaho voters); and 6% of the registered voters in 18 of the state’s 35 legislative districts.

The Idahoans for Open Primaries supporters coalition is moving forward after Labrador’s office issued a May 31 certificate of review of the open primary initiative that raised concerns about possible conflicts with the Idaho Constitution and legal concerns. 

In the review, Labrador’s office said the initiative violates a state law that says an initiative “shall embrace only one subject and matters properly connected with it.”

“The proposed initiative plainly violates Idaho Code section 34-1801A,” the AG’s review states. “It addresses two distinct subjects: (1) the so-called ‘open primary’ that eliminates party primaries; and (2) the institution of ranked choice voting for the general election. These two matters are separate subjects and neither one depends on the other.”

Jim Jones, a former Idaho Supreme Court Chief Justice and former Idaho Attorney General, disagrees. Jones is a supporter of the open primary initiative. He said he reviewed the initiative’s language before and after it was submitted for the AG’s review. Jones also said he is working to build support for the initiative among his fellow former elected officials from the Republican Party. 

In a telephone interview, Jones said the initiative deals with only one subject — elections. 

“You’re dealing with elections,” Jones said. “If you make changes to the primary election, oftentimes by necessity you are going to have to make changes to the general election. It is a single subject and the idea that it is violative of the single subject rule is patently baloney.”

This isn’t the first time Jones and Labrador have disagreed. Jones broke ranks with the Idaho Republican Party to serve as the campaign treasurer for Labrador’s Democratic opponent Tom Arkoosh in last year’s election. Jones has also written opinion pieces critical of Labrador and supportive of the open primary initiative. 

The Idaho Attorney General’s review from Labrador’s office also said the open primary initiative violates a section of the Idaho Constitution that states the person “having the highest number of votes for the office voted for shall be elected.”

“The proposed initiative states that if no candidate receives a majority of the votes upon the count of the vote in the election, the election goes to a series of what it calls ‘instant runoff elections.’”

Jones said the Idaho Constitution doesn’t address an instant runoff election. 

“I don’t think at the time our constitution was drafted, anybody was thinking about the type of election where you have a voter being empowered to make a second, third and fourth choice in case their first choice doesn’t win,” Jones said. 

Labrador signed the review, which was completed by Lincoln Davis Wilson, the office’s civil litigation and constitutional defense chief, and Deputy Attorney General Jim Rice, a Republican former legislator from Caldwell, according to a note at the bottom of the review.

In addition to criticizing the legal review, Jones also alleged that Labrador injected his own personal views into the review because Labrador sent a May 2 tweet about the initiative that said, in part, “Let’s defeat these bad ideas coming from liberal outside groups.”

The Idaho Attorney General’s Office released a written statement about the initiative and review on Tuesday.

“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.”

The Idaho Capital Sun first requested an interview with Labrador to discuss the tweet on May 4, but efforts have been unsuccessful.  

What are closed primary elections?

Idaho has a closed primary election system, following a federal court decision and a 2011 law, House Bill 351, passed by the Idaho Legislature. 

The closed primary means that people who are not registered with a political party may not participate in that political party’s primary elections to select party nominees for the general election.  

The law that closed Idaho’s primary elections also gives political parties the choice to open their primary elections up to unaffiliated voters or all voters if party leaders officially notify the state about opening the primary. 

The Idaho Democratic Party was the only political party to hold open primary elections during the most recent state elections in 2022. The Republican Party, Constitution Party and Libertarian Party all held closed primary elections in 2022, Chelsea Carattini, a spokesperson for the Idaho Secretary of State’s Office, previously told the Sun. 

What comes next for the ballot initiative?

Under Idaho Law, the Attorney General’s Office has 10 working days to provide ballot titles for the initiative.

The short title is essentially a name for the initiative. The general title expresses the purpose of the initiative in 200 words or less. 

Under state law, the attorney general shall “to the best of his ability, give a true and impartial statement of the purpose of the measure and in such language that the ballot title shall not be intentionally an argument or likely to create prejudice either for or against the measure.”

State law also gives anyone who is dissatisfied with the ballot titles provided by the attorney general the ability to appeal the issue to the Idaho Supreme Court and request different ballot titles.

“If that does occur, we would go directly to the Idaho Supreme Court to try to get the ballot titles changed to comport with what the statute requires,” Jones said. 

Under the 10 day timeline, the Idaho Attorney General’s Office has to provide the ballot titles by June 30.