Attorney General Labrador asks Idaho Supreme Court to dismiss open primary challenge

Idaho Attorney General Raúl Labrador’s office has asked the Idaho Supreme Court to dismiss Idahoans for Open Primaries’ legal challenge to ballot titles assigned by Labrador’s office. 

The response from Labrador’s office was filed with the Idaho Supreme Court late Tuesday afternoon and represents the latest development in a legal dispute between the AG’s office and supporters of the proposed ballot initiative.

A coalition calling itself Idahoans for Open Primaries is seeking to qualify a ballot initiative for Idaho’s November 2024 general election.

• The ballot initiative is designed to eliminate Idaho’s closed party primary elections and replace them with a single primary election that all voters vote in and all candidates run in, regardless of party affiliation. Under the initiative, the top four vote-getters from the primary election, regardless of party affiliation, would advance to the general election. 
• The ballot initiative would also change the general election by creating an instant runoff, or ranked choice, voting system. Voters would vote for their favorite candidate and also have the ability to rank the other three candidates on their ballots in order of preference. If one candidate receives at least 50% of the votes, that candidate would be elected the winner. But if not, the candidate receiving the fewest votes would be eliminated and their votes would automatically be transferred to the second-choice candidate on each of those ballots. That process would continue until one candidate has at least 50% of the votes and is elected the winner. Under that system, Idahoans would only vote one time because their second, third and fourth choice preferences marked on their original ballots would decide any instant runoff elections.  

The legal challenge involves the ballot titles, which describe what the ballot initiative is and what it does. 

Labrador’s office assigned ballot titles on June 30, but on July 10 the groups Idahoans for Open Primaries and Reclaim Idaho asked the Idaho Supreme Court to throw out the ballot titles. They alleged the ballot titles were misleading and reflected Labrador’s personal bias against the initiative following a May 2 tweet in which Labrador wrote, in part, “Let’s defeat these bad ideas coming from liberal outside groups.”

In Tuesday’s response to the challenge, Labrador’s office denied the allegations and said the office followed the law and issued accurate ballot titles. 

“Just as the law directs, the Attorney General’s short and long titles acquaint voters with the purposes of the initiative and explain how the initiative differs from existing law,” Deputy Solicitor General Joshua N. Turner wrote in the AG’s response. 

Idaho Supreme Court justices gave Idahoans for Open Primaries and Reclaim Idaho until Aug. 1 to file their reply brief.  

The Idahoans for Open Primaries coalition has made its opposition to Labrador’s ballot titles clear.  

“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,” Idahoans for Open Primaries and Reclaim Idaho wrote in their July 10 challenge.  

The Idaho Supreme Court will hear oral arguments in the open primary case on Aug. 7 in Boise. According to the court order setting oral arguments, both sides will be allowed 30 minutes for arguments.

The two sides’ disagreement runs deeper than the ballot titles, however. Labrador has threatened to sue if the initiative qualifies for the ballot, and his office said the initiative violates a section of state law limiting ballot issues to addressing one subject. Labrador’s office said the initiative involves two subjects — primary elections and the general election. 

Open primary initiative supporters disagree, including former Idaho Supreme Court Chief Justice Jim Jones. Supporters say the initiative only involves one subject — elections. Jones and some open primary supporters have also said Labrador should have recused himself from reviewing the ballot initiative because they allege he has a personal bias against it following the May 2 tweet. 

Ballot initiatives are a form of direct democracy in Idaho where the people vote on whether to pass a law at the ballot box, independent of the Idaho Legislature. Medicaid expansion, which more than 60% of Idaho voters approved in the 2018 general election, is an example of a ballot initiative and the most recent ballot initiative approved by Idaho voters. That initiative was also supported by Reclaim Idaho.

If the open primary ballot initiative qualifies for the 2024 general election, it would take a simple majority of voters to approve it. 

But to qualify for the election, supporters of the ballot initiative must gather signatures from 6% of Idaho voters statewide and 6% of Idaho voters in 18 of the state’s 35 legislative districts. It will take about 63,000 signatures to meet the 6% statewide requirement. 

The open primary supporters have until May 1 to turn in their signatures, but they cannot begin gathering those signatures until the legal dispute over the ballot titles is resolved. 

Open primary supporters have also asked the Idaho Supreme Court to extend the signature gathering deadline because they say the legal dispute has delayed their ability to start on the signature drive.