Court ruling expected Thursday in Idaho AG Labrador’s ballot initiative challenge

The Ada County Courthouse in Boise on March 21, 2021. (Otto Kitsinger for Idaho Capital Sun)

An Idaho district court judge could rule as soon as Thursday on Attorney General Raúl Labrador’s latest challenge to a ballot initiative that seeks to end Idaho’s closed party primary elections and create a system of ranked-choice voting in general elections.

Both sides were in Ada County District Court on Wednesday for a summary judgment hearing. 

Labrador is alleging that volunteer signature gathers supporting the Idahoans for Open Primaries ballot initiative misled voters and obtained signatured fraudulently. Labrador is seeking to block the ballot initiative from going up for a vote in the Nov. 5 general election after arguing the signatures gathered to qualify the ballot initiative for the election should be thrown out. 

However, supporters of the ballot initiative have described Labrador’s challenge as “political theater” that is designed to prevent the voters of Idaho from deciding on Election Day whether the ballot initiative should pass or fail.

In Idaho, ballot initiatives are a form of direct democracy where the people of Idaho vote on whether or not to pass a proposed law, independent of the Idaho Legislature.

Labrador takes issue with ‘open primary’ verbiage for describing ballot initiative

A major part of Labrador’s case is that supporters of the ballot initiative refer to it as an “open primary initiative,” while the official ballot titles used in the petition refer to the initiative as a top-four primary – not an “open primary.” The Idaho Attorney General’s Office also said the Idaho Supreme Court declined to describe the ballot initiative as an “open primary initiative” after the ballot initiative supporters asked the court to do so. 

“It should have been the end of story regarding open primaries, the Supreme Court’s opinion, but Idahoans for Open Primaries began to brand their entire campaign around that phrase, ‘open primaries,’” said Joshua N. Turner, chief of constitutional litigation and policy for the Idaho Attorney General’s Office. “And not just open primaries. They said, ‘this is the open primaries initiative.’”

But Deborah Ferguson, who argued the case for the ballot initiative supporters, said “open primaries” is just a shorthand phrase to descrIbe the initiative. Ferguson said using the term “open primary” to refer to the initiative is like using the terms “pet,” “dog” or “canine” to refer to a Yellow Labrador Retriever. Those terms are still accurate, she said, even if they don’t use the full, distinct legal name on first reference. 

Reclaim Idaho and Mormon Women for Ethical Government collect signatures before their event announcing their combined efforts working on the Open Primary Initiative in Meridian on October 7, 2023. (Otto Kitsinger for Idaho Capital Sun)

Ferguson said signature-gatherers did not deceive the public or commit fraud. Ferguson told the judge that all of the petitions with all of the signatures included the official ballot titles that describe the initiative as a top-four primary that requires a ranked-choice voting system for the general election. Ferguson also said the ballot titles also appear in the Idaho Voters Pamphlet, on the Idahoans for Open Primaries website and will be on the actual ballot on Election Day. 

“To say ‘open primary’ is simply a shorthand way of referring to this initiative,” Ferguson said. “The full content of the initiative was explained in numerous websites, in countless news articles and in guest columns and by all kinds of community forums.”

“Proposition 1 has earned the right to be on the ballot, and it would be extraordinarily destabilizing for the court to decertify it, on the eve of an election,” Ferguson added. 

With Election Day to months away timing is a factor in case over Idaho ballot initiative

Wednesday’s hearing lasted about 90 minutes. District Judge Patrick J. Miller did not issue a ruling at the end of Wednesday’s hearing but said his goal is to have his opinion out by Thursday morning. 

Miller told the attorneys working on the case that he has spent a significant amount of time over the past week getting up to speed on the case to be able to issue a prompt opinion. 

“I have got to work on an opinion, not knowing exactly what I was going to conclude that opinion with, but try to get a lot of the facts documented so I would be somewhat along the way of being able to get an opinion out promptly,” Miller said at the conclusion of Wednesday’s hearing. 

Labrador filed the complaint with Ada County District Court on Aug. 16, and Miller was only assigned the case on Aug. 27, court records indicate. 

Timing is definitely a factor in the case. Idaho county clerks and the Idaho Secretary of State’s Office have already verified the ballot initiative signatures. The ballot initiative is scheduled to be voted on during the Nov. 5 general election as Proposition 1. The first absentee ballots for the Nov. 5 general election are scheduled to be mailed Sept. 21, Idaho Secretary of State Phil McGrane previously told the Idaho Capital Sun. In addition, the deadline to finalize the Idaho Voters’ Pamphlet that is being mailed to all registered voters has already passed, with the ballot initiative included in the pamphlet. 

The Idaho Supreme Court dismissed an earlier version of Labrador’s fraud challenge on Aug. 13 without holding oral arguments in the case. When it dismissed Labrador’s challenge, the Idaho Supreme Court said Labrador was free to instead bring the challenge to district court, which Labrador did on Aug. 16.

How would the Proposition 1 ballot initiative work in Idaho?

If it goes up for a vote on Nov. 5 as scheduled, it would take a simple majority of votes to pass Proposition 1. 

If approved, Proposition 1 would make changes to both the primary and general elections in Idaho. 

First, it would end Idaho’s closed party primary elections and replace them with a single primary election that is open to all voters and all candidates, regardless of party affiliation. The top four candidates with the most votes in the primary election would all advance to the general election, regardless of party affiliation. That means it would be possible for multiple candidates – or even all of the candidates – in a general election race to be from the same political party. There is no guarantee there would be at least one Democrat and one Republican in a general election race. Idaho has had a closed primary law since 2011 that says political parties do not have to let voters vote in their primary elections unless they formally affiliate with that political party. In the most recent elections, only the Idaho Democratic Party opened its primary elections to outside voters, the Idaho Secretary of State’s Office said previously. The Republican, Constitution Party and Libertarian primary elections were all closed. In Idaho, more than 268,000 of the state’s 1 million voters are unaffiliated voters who are not allowed to vote in closed primary elections. Passing the Proposition 1 ballot initiative would repeal the closed primary election law. 

The second thing the ballot initiative would do is change Idaho’s general elections to create ranked-choice voting, which is sometimes called an instant runoff form of voting. Under that system, voters would pick their favorite candidate and then have the option to rank the remaining candidates in order of preference – second choice, third and fourth. It would be optional, not a requirement to rank the remaining candidates. Under that system, the candidate with the fewest votes would be eliminated and their votes would instead be transferred to the second choice candidate marked on ballots. That process would continue until there are two candidates left and the candidates with the most votes would be elected the winner.

Ranked-choice voting would increase the time it takes to count initial unofficial election results

Under ranked-choice voting, it would likely take longer for election results to be calculated and Idahoans may not know the winner of major state elections for one or more days after an election. McGrane previously told the Sun he is not sure exactly how much longer it would take to count election results because the state has not used ranked-choice voting before. 

Currently, state and county elections officials release unofficial election results after all of the polls close on Election Day. It is common for the vast majority of unofficial election results to be released within a few hours of the polls closing. However, state election results in Idaho do not become official until after the State Board of Canvassers certifies the election results, a formal process that occurs about two weeks after an election. Moving to ranked-choice voting would delay the time it takes to issue the initial unofficial election results, which are the results the news media reports on the night of the elections. 

If Idaho has to replace its vote tabulation systems it could cost at least $25 million to $40 million, McGrane told legislative leaders in a July 3 letter to legislative leaders. McGrane told legislative leaders the two vote tabulation system vendors certified in Idaho aren’t capable of tabulating the results of a ranked-choice voting ballot. However, Idahoans for Open Primaries spokesman Luke Mayville said there is low-cost software available that can be certified in Idaho to tabulate ranked-choice ballots and the state does not need to go through the expense of replacing its vote tabulation systems. Mayville is the co-founder of Reclaim Idaho, which sponsored the successful 2018 Medicaid expansion ballot initiative that more than 60% of Idaho voters approved.