ISC rules against Labrador’s ballot titles in open primary case

The Idaho Supreme Court on Thursday threw out ballot titles written by Idaho Attorney General Raúl Labrador’s office concerning a new ballot initiative relating to Idaho’s primary elections and ordered Labrador to deliver new ballot titles to the court by Friday afternoon.

Thursday’s opinion arrived quickly after Monday’s oral arguments in the case of Idahoans for Open Primaries vs. Labrador.

The case is about the ballot titles that Labrador’s office assigned June 30 for the primary election ballot initiative. Ballot titles are important because they describe to the public and voters what the ballot initiative is and what it does.

The ballot titles also need to be in place before Idahoans for Open Primaries can begin collecting signatures attempting to qualify their ballot initiative for the November 2024 general election.

The issue came before the Idaho Supreme Court because Idahoans for Open Primaries and Reclaim Idaho filed a legal challenge July 10, alleging that the ballot titles Labrador’s office supplied were misleading and inaccurate. Reclaim Idaho is the same group behind the successful 2018 Medicaid expansion ballot initiative.

Supporters of the ballot initiative also argued that Labrador has a personal bias against the ballot initiative after he posted a May 2 tweet writing, in part, “Let’s defeat these bad ideas coming from liberal outside groups.”

Labrador’s office said late Thursday it would promptly submit revised ballot titles for the ballot initiative.

Court agrees in unanimous opinion that Labrador’s terminology isn’t commonly used, may cause prejudice against initiative

In the opinion, Idaho Supreme Court justices agreed with several of the arguments made by Idahoans for Open Primaries and Reclaim Idaho.

For example, in the short ballot title, Labrador’s office used the term “nonparty blanket primary” to describe aspects of the ballot initiative.

“We conclude that, although ‘nonparty blanket primary’ is not commonly used to describe the measure, to the extent some individuals are familiar with the term, it is likely to cause prejudice against the Initiative,” Idaho Supreme Court Justice Colleen D. Zahn wrote in the 31-page unanimous opinion. “The short title risks confusing voters about the constitutionality of the proposed primary system.”

Idaho Supreme Court Chief Justice G. Richard Bevan and Justices Robyn M. Brody, John R. Stegner and Gregory W. Moeller concurred with the ruling.

“In sum, we hold that the short title fails to substantially comply with section 34-1809(d) and (e) in several respects,” Zahn wrote in the opinion. “Its use of the term ‘nonparty blanket primary’ fails to utilize language by which the measure is commonly referred to, is not distinctive, and is likely to prejudice the Initiative. Additionally, the statement that the Initiative would ‘require ranked choice voting for general elections’ is also likely to prejudice the Initiative.”

In the opinion, Zahn pointed out that that section of Labrador’s ballot title was inaccurate. If the ballot initiative passes, voters would have the option to participate in ranked choice voting for the general election; they would not be required to.

Former Republican Speaker of the Idaho House Bruce Newcomb, who is a supporter of the ballot initiative, expressed support for Thursday’s Idaho Supreme Court opinion.

“Today’s decision is a major victory for the voters of Idaho,” Newcomb said in a written statement. “Too many of our elected officials are handpicked by special-interest groups, not by the voters they’re supposed to serve. The Open Primaries Initiative will change that by giving all voters — regardless of party affiliation — the right to vote in primary elections.”

Although justices agreed with several of Idahoans for Open Primaries and Reclaim Idaho’s arguments, supporters of the ballot initiative did not get everything they asked for.

The Idaho Supreme Court declined to extend the May 1 deadline to turn in signatures for the ballot initiative, writing that the petitioners did not establish that the Secretary of State’s Office has a legal duty to extend the deadline.

The opinion also raised questions about the accuracy of the term “open primary.”

“It appears the most accurate description for the type of primary proposed in the Initiative is a ‘top four primary,’” Zahn wrote in the opinion.

The Idaho Supreme Court also awarded attorneys fees to Idahoans for Open Primaries and Reclaim Idaho.

“While we are disappointed we did not win on all issues presented, we are pleased that the Idaho Supreme Court rejected most of petitioners’ challenges,” the Idaho Attorney General’s Office wrote in a written statement late Thursday afternoon. “The Court held that the initiative does not propose an open primary and does propose ranked choice voting. We will promptly submit revised ballot titles accommodating the Idaho Supreme Court’s other holdings and in accordance with the Court’s schedule.”

Labrador’s office had until 4 p.m. Friday to supply new ballot titles.

What would the election ballot initiative do if it passes?

If it qualifies for the November 2024 general election and is approved by a simple majority of Idaho voters, the ballot initiative would make changes to Idaho’s primary and general elections.

First, the initiative would replace Idaho’s closed party primary elections with a single open primary election that all candidates could run in and all voters could vote in, regardless of party affiliation. The top four vote-getters from the primary election would advance to the general election, regardless of party affiliation.

Second, the initiative would create an instant runoff or ranked choice system of voting for the general election. Voters would vote for their favorite candidate in the general election and then have the option of ranking the other three candidates in order of preference. In the event that one candidate did not win a majority of the votes, the candidate with the fewest votes would be eliminated and their votes would instead be transferred to the second choice candidate on those ballots where voters marked a second choice. That process would continue until one candidate has a majority of the votes and is elected the winner. Idahoans would not need to vote more than once, and there would not be more than one general election because voters’ ranked choices on their original ballots would determine any instant runoff races.

Since 2011, Idaho has had a closed primary election law that means voters who are not registered with a political party may not participate in that political party’s primary elections. That law also gives political parties the ability to open their primary elections if they choose, but a political party needs to provide written notification to the Secretary of State’s office if it intends to open its primary election to unaffiliated voters or voters from another political party.

During the most recent primary election in 2022, only the Idaho Democratic Party held an open primary, a spokeswoman for the Idaho Secretary of State’s Office previously told the Idaho Capital Sun. All other party primary elections were closed.