A proposed ballot initiative that seeks to diminish partisan influence in Idaho elections is unconstitutional, according to Attorney General Raúl Labrador, who publicly opposed the effort as soon as it started.
A coalition of Idaho groups last month filed a ballot measure to make primaries open to all voters, regardless of party affiliation, and to create a ranked-choice voting system for general elections. The latter would allow voters to rank candidates in order of preference.
But Labrador, a Republican in his first term in the AG’s office, shared an analysis last week arguing that the initiative doesn’t withstand constitutional scrutiny.
Supporters of the initiative said Labrador’s claims are without merit.
“We believe Labrador has a conflict of interest due to the fact that he has recently attacked the initiative publicly,” Luke Mayville, founder of Reclaim Idaho, one of the groups backing the initiative, told the Idaho Statesman by email. “We will make minor edits that strengthen the initiative, but we do not see any merit in the (attorney general’s) claims about constitutionality.”
Attorney general says election initiative has several flaws
Idaho law directs the attorney general to review proposed ballot initiatives for “matters of substantive import” and recommend changes “deemed necessary and appropriate.” The review is “advisory only,” according to state law, meaning it has no effect on the initiative if the authors choose not to follow the advice.
Lincoln Davis Wilson, chief of the attorney general’s Civil and Constitutional Defense Division, and Jim Rice, a deputy attorney general and former longtime GOP state senator, conducted the review, and Labrador signed it. The attorneys argued that the proposal violates an Idaho law that bars initiatives from addressing multiple subjects because it would change both the primary and general elections.
“Idaho voters cannot be required to either adopt the ‘open primary’ system and the ranked choice voting method of general election voting or to reject both of them,” according to the analysis.
The Open Primaries Initiative would make two substantial changes to Idaho elections. First, it would create a single primary election for all candidates in federal, statewide and county races. Voters would select one candidate and the top four would advance to the general election.
As it stands, political parties nominate general election candidates after primaries. The Idaho Republican Party closed its primary in 2012, meaning only registered Republicans may vote in the election that produces most successful candidates for statewide office in the heavily conservative state. The Idaho Democratic Party has an open primary, allowing anyone to participate regardless of party affiliation.
“There are 200,000 voters in Idaho who are independent like me, and we’re blocked from voting in Idaho’s most important primary elections,” Debbie Reid-Oleson, a Blackfoot rancher who was one of the first 20 people to sign the initiative, said in a news release. “It’s wrong that we’re forced to join a political party just to exercise our right to vote.”
Second, the initiative would create a ranked-choice voting system for general elections. The alternative voting method, which is gaining momentum across the country, allows voters to rank candidates in their preferred order. A candidate who collects more than 50% of first-place votes wins the election. If no candidate reaches that threshold, a runoff counting process is triggered. The candidate with the fewest first-place votes is eliminated, and their votes are reallocated to the candidates listed second on that ballot. That process repeats until a candidate surpasses 50%.
The AG’s analysis said the proposed initiative runs counter to a provision in the Idaho Constitution that mandates candidates for statewide executive offices (governor, attorney general, secretary of state, etc.) are elected by a plurality — whoever has the highest number of votes.
Two state supreme courts have ruled separately on interpretations of similar constitutional provisions.
The Maine Supreme Judicial Court in 2017 found that an instant runoff method — triggered when one candidate doesn’t receive more than 50% of votes — conflicted with the state constitution’s mandate that gubernatorial and state legislative candidates be elected by a plurality of votes. Maine voters later excluded those offices from ranked-choice voting, unless the constitution is amended, and the state in 2020 became the first to use ranked-choice voting in a presidential election.
The Alaska Supreme Court, on the other hand, last year rejected arguments that the voting method violated that state’s provision that governors be elected by a plurality. The tabulation process still would result in a candidate receiving the greatest number of votes in a single election, satisfying the state’s constitution, the justices found.
The Idaho attorney general analysis said the Maine opinion “better accords with principles of interpretation” with regard to the Idaho initiative and constitution.
“The proposed initiative’s clear emphasis is on obtaining majority support to elect a candidate, even though the Idaho Constitution nowhere states that a majority is required,” the AG attorneys wrote.
The attorneys also argued that the initiative would violate the rights of political parties to nominate candidates and of voters to select a single candidate in an election.
AG analysis called a ‘collection of contrived arguments’
Jim Jones, a former Idaho attorney general and Supreme Court justice, called the AG review “a collection of contrived arguments designed to sabotage the initiative.”
The ballot measure is inspired by the Alaska Better Elections Initiative, which was affirmed by that state’s justices, Jones said. He also bashed the “absurd position” that the initiative would violate the rights of political parties to nominate candidates.
“The Idaho Constitution does not grant political parties the right to control who votes in our elections, but our Supreme Court has held the right of citizens to elect their leaders is an inviolable constitutional right,” Jones said in an emailed statement to the Statesman.
Jones and others said Labrador should have recused himself from analyzing the initiative after publicly opposing ranked-choice voting. Idaho Solicitor General Theo Wold also derided the voting method on Twitter, saying attorneys general “are the strongest line of defense against the left’s national campaign to force ranked-choice voting on our elections.”
“Let’s defeat these bad ideas coming from liberal outside groups,” Labrador tweeted in response to news of the proposed initiative.
U.S. Rep. Mary Peltola, D-Alaska, last year won an upset victory in an election that had ranked-choice voting, after Republicans and other conservatives in the state pushed courts to block the voting method. GOP lawmakers in Idaho banned the method this year, but the proposed initiative would repeal that prohibition if it passed.
Jones said that Labrador violated “statutory duty by stating his political views about the initiative, rather than performing an impartial legal analysis.”
“But, this is in keeping with his promise to run a political office, rather than a law office providing sound legal advice.”
Jones also noted that several Idaho Republicans, including former House Speaker Bruce Newcomb, support the initiative.
Beth Cahill, Labrador’s spokesperson, told the Statesman that the attorney general “has often made clear that he opposes ranked-choice voting” and said there’s “no ethical issue” with having a prior opinion.
“As the law requires, Attorney General Labrador provided an analysis of a statewide initiative for ‘form and style,’ providing the necessary recommendations for revision,” Cahill said by email. The attorney general’s analysis “does not determine whether the backers continue to pursue their initiative. It is shameful that the attorney general’s critics are obsessed with trying to silence him by making up fake ethical standards.”
Idahoans for Open Primaries is a partnership between Reclaim Idaho, the Idaho Task Force of Veterans for Political Innovation, North Idaho Women, Represent US Idaho and the Hope Coalition. The groups hope to place the initiative on the ballot for the November 2024 election.
In order to do that, the group must collect signatures from 6% of Idaho voters who were registered for the last general election — nearly 63,000 people — along with signatures from 6% of registered voters in 18 of 35 legislative districts. The deadline is May 1, 2024.