An initiative to create an open primary and switch to a ranked-choice voting system in Idaho will appear on the November ballot.
Only nine weeks ahead of the Nov. 5 general election, an Ada County judge ruled against Idaho Attorney General Raúl Labrador, who brought a lawsuit against the initiative in an effort to stop it from appearing on the ballot and argued that those who signed the petition were misled. The judge allowed summary judgment at the request of both sides, which gave him the power to decide on the lawsuit quickly without a trial.
“The court finds the attorney general has not met his burden on summary judgment to establish a violation to the extent this court has the authority to declare all signatures invalid,” 4th Judicial District Judge Patrick Miller wrote in his memorandum decision released Thursday, adding that “there is very little evidence, even interpreted most favorably to the attorney general,” that the defendants were misleading.
Idaho allows political parties to close their primaries, and only registered Republicans are allowed to vote in Republican primaries. Idaho Democrats chose not to close their elections. In Idaho, where most voters are registered Republicans, the GOP primary typically determines who wins in the general election.
The initiative seeks to change the closed primary system and asks voters whether Idaho should create a nonpartisan primary system open to all voters. If passed, the new primary system would involve voters choosing their top four candidates to move on to the general election. Then, in the general election, voters would rank their candidates in order of preference.
Idaho Secretary of State Phil McGrane approved the measure for the ballot in July after the Idahoans for Open Primaries coalition collected more than 70,000 signatures in support of it.
Labrador sued the coalition and asked the court to throw out all signatures, alleging that the coalition backing the measure, Idahoans for Open Primaries, misled signers by inaccurately describing the initiative as “open primaries” rather than ranked-choice voting.
In his memorandum, Miller said that Labrador’s entire case hinged on the assertion that using the phrase “open primary” for the initiative was inaccurate.
“This court concluded that the attorney general cannot establish, as a matter of law, that the use of term ‘open primary’ initiative was false,” Miller wrote.
Miller noted that while the Attorney General’s Office tried to argue that the initiative’s website and petition were misleading, they contained accurate descriptions and language approved by the Idaho Supreme Court.
“The evidence the attorney general submits actually negates the idea that the defendants perpetrated false statements to thousands of persons who actually signed a petition,” Miller wrote.
Labrador in a statement said the ruling Thursday is inconsistent with Idaho Supreme Court statements that the initiative doesn’t describe an “open primary” system, but believed the legal challenge “raised awareness about the true nature of the initiative.”
“Unfortunately, nothing will stop initiative sponsors from obtaining signatures through misrepresentation in the future,” he said. “It is now up to Idaho voters to decide whether they want to replace Idaho’s primary system with a top-four primary system and fundamentally alter Idaho’s orderly general elections with an expensive ranked-choice voting system that has resulted in confusion, delays and widespread voting errors in other states.”
Luke Mayville, spokesperson for Idahoans for Open Primaries, called Miller’s decision “a significant win for Idaho voters and the nearly 100,000 citizens who signed the petition.”
“AG Labrador has tried at every turn to suppress the voices of Idahoans and disrupt the ballot initiative,” Mayville said in a news release. “But today, the people of Idaho prevail. The court’s decision ensures that Proposition 1 — the Open Primaries Initiative — will be on the ballot this November.”
Removing the ballot initiative at this point would have required spending $300,000 to create new voters pamphlets without the initiative and mail them out to 800,000 Idahoans, Jason Lehosit, deputy policy director for the Secretary of State’s Office, told the Idaho Statesman.
Judge hears arguments from Labrador, coalition
Miller allowed each side 25 minutes on Wednesday to make their case.
Much of the oral arguments came down to whether those who signed were deceived into believing the initiative was something it was not. The Attorney General’s Office argued that a ranked-choice primary is not the same as an open primary, while Idahoans for Open Primaries maintained that ranked choice is a type of open primary.
“It would be Orwellian if the government could decide the words that it deems acceptable or proper or true to describe our thoughts, our ideas, our reforms,” said Deborah Ferguson, attorney for Idahoans for Open Primaries. “The government can’t do this. We don’t live in that kind of a totalitarian state.”
A significant portion of the coalition’s material — including a cover page on clipboards used to collect signatures — billed the initiative as seeking an “open primary.” The signature page, however, stated in large font that the initiative sought to “replace voter selection of party nominees with a top-four primary” and “require a ranked choice voting system for general election.”
Josh Turner, the attorney general’s chief of constitutional litigation, argued in court that organizers deliberately chose to confuse the issue by using the term “open primaries.”
“You can’t cure a falsehood by disclosing it in whatever size print you want after the fact,” Turner said. “We all know that, as humans, we’re prone to sign things without reason.”
Turner said signers may have believed that they were supporting an initiative to return Idaho to its pre-2012 open primary system, which allowed voters to choose which party’s primary to participate in, regardless of their political affiliation. He said allowing a ballot initiative to call itself something it’s not “would remove a crucial guardrail to protecting this process from abuse and fraud.”
The Ada County hearing was Labrador’s second attempt at fighting open primaries in court. He first took a case against the coalition and secretary of state straight to the Idaho Supreme Court, which ruled the fraud allegations must be decided in a lower court.
The justices said they couldn’t decide on the attorney general’s second claim, that the initiative was unconstitutional, unless voters approved the measure in November, the Statesman previously reported. The initiative would need simple majority support to pass.
The Idaho Republican Party has pushed back on the ballot initiative, though other Republican individuals and groups, including former Gov. Butch Otter with Republicans for Open Primaries, Mormon Women for Ethical Government and Veterans for Idaho Voters, have helped organize support.
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