The Idaho Supreme Court building in Boise. (Otto Kitsinger for the Idaho Capital Sun)
Questions about how to describe a proposed ballot initiative that would change Idaho elections were the focal point of oral arguments before the Idaho Supreme Court on Monday in Boise.
The case involves the ballot titles for a proposed ballot initiative brought forward by Idahoans for Open Primaries. The ballot titles are important because they describe to voters and the public what the initiative is and what it does. There is a short ballot title of 20 words or less and a longer ballot title of 200 words or less.
What does the primary election ballot initiative do?
If it qualifies for the November 2024 election, the ballot initiative would ask Idaho voters whether to approve a change that would eliminate Idaho’s closed party primary elections and replace them with a single primary election that is open to all candidates and all voters, regardless of party affiliation. The initiative would also change the general election by changing to an instant runoff, or ranked choice election system. Under the initiative, the top four vote getters from the primary election would advance to the general election. During the general election, voters would vote for their favorite candidate and have the option to rank the remaining three candidates on their same ballot. If one candidate didn’t immediately win a majority of votes, the candidate with the fewest votes would be eliminated and their votes would instead be transferred to those voters’ second choice candidate. That is the instant runoff process, and it would continue until one candidate did receive a majority of votes. Under that system, Idahoans would only vote once in the general election; there would not be multiple elections. The voters’ second, third and fourth choices would decide any instant runoff races.
The ballot initiative was in front of the Idaho Supreme Court on Monday because Idahoans for Open Primaries and Reclaim Idaho filed a legal challenge to the ballot titles that Idaho Attorney General Raúl Labrador’s office assigned to the ballot initiative on June 30. Reclaim Idaho is the same group that was behind the 2018 Medicaid expansion ballot initiative.
The short title from Labrador doesn’t call the ballot initiative an open primary but calls it a nonparty blanket primary.
“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 reads.
Monday’s hearing included an array of questions posed by several of the justices themselves and a lengthy discussion of a tweet Labrador posted May 2 writing, in part, “Let’s defeat these bad ideas coming from liberal outside groups.”
During Monday’s hearing, attorney Deborah Ferguson argued Labrador failed at his duty to be an objective and impartial officer in his handling of the ballot titles. Ferguson also argued the term nonparty blanket primary is inaccurate.
“Glaringly absent in that title is any mention that the law would create an open primary system in Idaho,” Ferguson said.
“This is such an important part of the initiative process and the short title especially is the headline by which the public will know it,” Ferguson added.
Idahoans for Open Primaries are asking to have Labrador’s ballot titles thrown out and corrected by the court.
Meanwhile, the Idaho Attorney General’s Office is asking for the challenge to be dismissed and the titles to be retained. Idaho Solicitor General Theo Wold, who argued the case for the AG’s office, said Labrador followed the law and described the initiative in language that is truthful and neutral.
“Petitioners want the ballot title to call the measure an open primary, but it is not,” Wold argued. “Idaho used to have an open primary, but the system proposed here is distinctly different. The initiative proposes a nonparty blanket primary.”
Wold also argued that in his tweet Labrador was arguing against the concept of ranked choice voting, not the specific ballot initiative he was reviewing and assigning titles for. Wold argued that the justices should simply look at Labrador’s work product to determine he did not violate his role with the initiative.
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Will the Idaho Supreme Court supply new ballot titles?
During oral arguments, Idaho Supreme Court justices raised questions about the accuracy of both the supporters’ use of “open primary” and Labrador’s office’s use of “nonparty blanket primary.”
“I was unable to find another external source that referred to this type of primary as an open primary,” Idaho Supreme Court Justice Colleen D. Zahn said during the beginning of the hearing. “Instead, they appeared to define open primary as still a party primary, but anybody, regardless of party affiliation is allowed to vote.”
About 20 minutes later, Zahn questioned Wold over how the Idaho Attorney General’s Office came up with the term it used.
“I couldn’t find where the term ‘nonparty blanket primary’ has ever been used by anybody other than the attorney general,” Zahn said.
During oral arguments, Ferguson and Idaho Supreme Court Justice Gregory W. Moeller discussed the possibility of instead using new ballot titles that refer to it as “a top-four open primary” with “ranked choice voting” in the general election.
Zahn also discussed the term “top four primary.”
Oral arguments lasted just over an hour Monday. At the end, Chief Justice G. Richard Bevan announced the justices would take the matter under advisement. The justices did not announce a deadline for issuing a ruling.
In some notable recent cases, the Idaho Supreme Court has issued rulings in a matter of weeks.
For example, in the 2020 case of former Superintendent of Public Instruction Sherri Ybarra vs. the Idaho Legislature, the court held oral arguments June 5 of that year and issued a ruling June 22.
What happens next for the Idahoans for Open Primaries ballot initiative ?
The ballot titles are an important part of the initiative process, and supporters of the initiative cannot move forward with their signature drive until the ballot titles are in place.
As things stand now, the group Idahoans for Open Primaries has until May 1 to turn in signatures to qualify the initiative for the 2024 general election. To qualify, they will need signatures from 6% of Idaho voters statewide and 6% in 18 of the state’s 35 legislative districts. To meet the 6% statewide total, supporters will need to gather about 63,000 signatures from registered voters.
Then, if the initiative makes the election, it would take a simple majority of voters to approve it at the polls.
The initiative supporters have also requested an extension to their deadline to turn in signatures, saying the case over the ballot title issues has already dealt a significant setback to the effort.
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