By Ruth Brown, Idaho Reports
The Idaho Supreme Court heard arguments on Monday in the lawsuit regarding the attorney general’s designated ballot title for a potential voter initiative.
The ballot title is what voters will see should the initiative collect enough signatures to make it on the November ballot, and what people will see when deciding whether to sign the initiative. Under Idaho law, the attorney general is required to assign ballot titles to citizens’ initiatives.
The Idahoans for Open Primaries Coalition and Reclaim Idaho sued Attorney General Raúl Labrador over his assigned titles in July, arguing his wording did not conform to the law.
The coalition is proposing changing primary elections to allow all voters to vote in the primary. Currently, only registered Republicans may vote in a Republican primary. The initiative would permit all registered voters to vote for any candidate, regardless of political affiliation and without a declaration of political allegiance. The top four candidates would advance to the general election.
The initiative would also alter Idaho’s general elections by creating a new instant runoff voting system, commonly called ranked choice voting.
The short ballot titles from Labrador’s office would read as follows: “Measure to (1) replace voter selection of party nominees with nonparty blanket primary; (2) require ranked-choice voting for general elections.”
The petitioners also oppose the long ballot titles written by Labrador’s office, which is what voters read on the ballot when they go to vote on an initiative.
Deborah Ferguson, who argued on behalf of the plaintiffs, told the court that the initiative needs to be called an “open primary” and stressed the importance of helping voters understand the initiative. She also argued that the attorney general’s use of the term “blanket primary” is inaccurate and not widely used, and the initiative does not use that term.
Ferguson believes Labrador should be disqualified from writing the new ballot titles because he’s shown bias on social media, saying he would sue the petitioners if it made it on the ballot and he wanted to destroy the initiative.
Both Labrador and Solicitor General Theo Wold publicly voiced opposition to the initiative on social media.
Wold argued on behalf of the state on Monday, saying that calling the initiative a nonparty blanket primary is an accurate term.
“It’s a bit condescending to the voters of Idaho to say that it somehow is beyond their grasp,” Wold said.
Wold said the term “blanket primary” is used in California and Washington, but Ferguson later disputed that claim.
California’s law is called the Top Two Candidates Open Primary Act.
Ferguson also took issue with the word “require” in the ballot title, saying voters would not be required to rank the candidates if they chose not to.
Wold argued that by not ranking the candidates, the voter is still affecting the outcome under ranked-choice voting.
Throughout the hearing, justices fired questions at both attorneys.
Justice Colleen Zahn asked for more examples of the use of the term “blanket primary.”
Wold pointed to California and Washington as states that have used that phrase.
Justice Robyn Brody followed, referring to California and today’s environment when an Idaho person hears “this is the way they do things in California.”
“If the idea is to present a neutral description of this ballot initiative, is using a term that we say commonly ‘this is what they do in California,’ ‘This is what they do in Washington,’ doesn’t that drive home the assertion the petitioners are making here?” Brody said. “Which is you’re dooming this to failure.”
Wold said they were looking for a true and accurate term and looked to other states.
“And what do they use in those sister states? The term blanket or nonpartisan blanket primary,” Wold said – a claim Ferguson rebutted in her arguments.
Both Justices Gregory Moeller and Zahn asked Ferguson to explain how the court had the authority to extend the deadline to collect signatures.
Ferguson responded the federal court granted Reclaim Idaho an exception for signature gathering due to the pandemic shut down for its education initiative.
Moeller pushed Wold on the idea of the attorney general holding a quasi-judicial role, meaning he must act in a non-biased way.
“If a county commissioner, before a matter comes to them, voices a public statement saying ‘I am opposed to this, I don’t like this project, I’m not going to vote for it,’ there’s caselaw in Idaho that say they are disqualified from voting on it because they’re sitting in a quasi-judicial capacity and they’ve shown bias,” Moeller said. “So if we’re going to look at this as a quasi-judicial function of the attorney general’s office, what repercussions does that have?”
Wold said the law states the legislature assigned the duty to the attorney general, a political actor.
“The attorney general was not speaking to the specific initiative itself,” Wold said. “He was speaking to the general idea of ranked choice voting as a concept. The attorney general, as a politically elected figure constitutional officer, will weigh in on any number of policy topics and policy questions.”
Petitioners asked the court to either approve the new titles suggested they’ve submitted, or assign a similar version. Alternatively, the petition asks the court to order Labrador’s office to immediately prepare ballot titles consistent with the proposed titles and retain jurisdiction to review the new titles from the attorney general.
The lawsuit also asks the court to extend the time in which petitions may be submitted to the Secretary of State, beyond April 30, 2024, for a time matching the length of delay caused by the legal challenge.
The Idaho Supreme Court does not have a deadline to issue its opinion in the case.