Election initiative violates single-subject rule, AG advises  

by Logan Finney, Idaho Reports  

A proposed voter initiative to overhaul how Idaho conducts its elections does not meet statutory requirements to get on the ballot, and conflicts with both the state and federal constitution, according to an analysis by the Idaho Attorney General’s Office.  

All state-level ballot initiatives in Idaho undergo an analysis for form and style before they can be circulated for signature gathering. This certificate of review was released last week and authored by Lincoln Davis Wilson, chief of civil and constitutional defense, and Jim Rice, deputy attorney general and a former state senator. 

“The proposed initiative plainly violates Idaho Code,” the review states. “It addresses two distinct subjects: (1) the so-called ‘open primary’ system that eliminates party primaries; and (2) the institution of ranked choice voting for the general election. These two matters are separate subjects and neither one depends on the other.” 

Lawmakers in 2020 amended state law so that ballot initiatives can only address a single subject, along with other requirements. One of the organizations behind this initiative, Reclaim Idaho, challenged and successfully overturned some of the changes in 2021, but the single-subject rule was not considered in that court case.  

The attorney general’s analysis takes issue with use of the term “open primary,” saying it is misleading for voters. Rather than create an open primary in which voters don’t have to declare their party affiliation, the review says, the initiative “abolishes the system of party primaries for most offices” and should be described as creating a “blanket primary” or similar terminology.  

The legal review also says the proposed initiative conflicts with constitutional requirements for certain elected offices. The U.S. Constitution says congressional elections “shall be prescribed in each state by the legislature thereof,” which the analysis says raises questions on whether those rules can be changed by a voter ballot initiative rather than by state legislators.  

The Idaho Constitution says the candidates for executive branch “having the highest number of votes” are elected, which the Attorney General’s Office says only requires a plurality of votes for victory. Courts in the two states to adopt ranked choice voting have settled the plurality-vs-majority issue differently.  

The Maine Supreme Court held that each round of ranked choice tabulation is a separate round of voting, and so advancing to subsequent rounds of votes violated that state’s constitution when one candidate had in fact reached a plurality of votes. However, the Alaska Supreme Court held that ranked choice voting is a single election which is not complete until all rounds of tabulation are finished.  

“This office believes that the opinion of the Maine Supreme Court better accords with principles of interpretation as they relate to the Idaho Constitution and the proposed initiative. 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 review says. 

The AG’s office also interprets the initiative text as requiring voters to rank all candidates in order of preference – or, unable to leave the candidates they do not like as blank – which “constitutes direct interference with the right to vote only for candidates the voter supports” under Idaho caselaw.  

“In an ordinary election, a voter may vote for one of the candidates on the ballot, a write-in candidate, or no candidate at all. But the proposed initiative interferes with suffrage by requiring voters to vote for all candidates on the ballot. It does so through its instruction prohibiting the voter from, among other things, skipping a ranking of candidates,” the review says.  

The Idahoans for Open Primaries coalition announced and submitted their draft initiative in early May. The attorney general’s analysis is advisory only, and initiative petitioners are free to accept or reject any of the recommendations.

Organizers have up to 15 working days after receipt of the review to make any changes before they submit the final initiative text for circulation and signature gathering.  

“This office offers no opinion with regard to the policy issues raised by the proposed initiative or the potential revenue impact to the state budget from likely litigation over the initiative’s validity,” the analysis notes. 

Idaho Reports asked initiative organizers for comment. They responded Monday afternoon with the following press release:

Attorney General Labrador Issues Biased Review of Open Primaries Initiative

Boise – Last week, the office of Attorney General Raúl Labrador issued its official review of the Open Primaries Initiative, a recently-filed ballot initiative that would end closed primary elections in Idaho. Idahoans for Open Primaries, the grassroots coalition supporting the initiative, says the AG’s review is heavily biased against the proposal.

The same day the Open Primaries Initiative was filed in early May, Attorney General Labrador issued a public statement on Twitter calling for the defeat of the initiative. Labrador’s vocal opposition to the initiative led some critics to call on the AG to recuse himself from the review process and appoint outside counsel.

Former Attorney General Jim Jones, who supports the Open Primaries Initiative, said Attorney General Labrador has politicized the review process and neglected the duties of his office:

“The AG’s review is a collection of contrived arguments designed to sabotage the initiative. Labrador fears the initiative because it would allow all Idaho voters to have a voice in our elections, rather than the small clique that has driven Idaho politics toward the outer bounds of extremism in recent years.”

Jones serves as a volunteer leader of the Idaho Task Force of Veterans for Political Innovation, one of the member organizations of the Idahoans for Open Primaries coalition. Idaho law requires the Attorney General to review initiatives “for form and style” and to provide recommendations for revision.

Jones commented on specific flaws in Labrador’s analysis:

“Labrador’s review asserts the initiative is constitutionally unsound, based upon a 2017 advisory opinion of the Maine Supreme Court. However, the initiative is fashioned after the “Alaska Better Elections Initiative” that was found to be constitutional by the Alaska Supreme Court in 2022.”

“Labrador takes the absurd position that the right of political parties to control who can vote in primary elections takes priority over the right of voters to vote for the candidates of their choice in those elections. 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.”

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