Idaho AG Labrador must appoint outside counsel on primary initiative. He has a conflict | Opinion

With a new initiative, which would reform Idaho’s politically destructive closed GOP primary, submitted to the secretary of state for certification, the attorney general has a job to do.

He is no longer capable of doing it.

On Tuesday, shortly after the initiative had been filed, Attorney General Raúl Labrador posted a tweet opposing the initiative.

“Let’s defeat these bad ideas coming from liberal outside groups,” Labrador wrote.

So his position is clear. The initiative is a “bad idea” that should be defeated along with the “liberal outside groups” who are fronting it. (Strange that Bruce Newcomb, the first Republican speaker of the Idaho House that Labrador served under, would be one of the primary faces of a “liberal outside group.”)

But Idaho’s attorney general has legal obligations when an initiative is filed, which are mostly outlined in Idaho Code 34-1809. These obligations involve legal review of the initiative and preparing a description of the initiative. The attorney general has a clear obligation to be impartial.

“In making the ballot title, the attorney general shall, to the best of his ability, give a true and impartial statement of the purpose of the measure and in such language that the ballot title shall not be intentionally an argument or likely to create prejudice either for or against the measure,” Idaho Code states.

Like a prospective judge announcing how they would rule on a case before it’s been presented to them, Labrador’s public denunciation of the initiative means he has an obligation to recuse himself from handling it himself. He’s already announced his opposition to the initiative and to the people circulating it, so there’s no possibility of objectivity.

The only credible opinion is for Labrador to appoint outside counsel — a needless expense created by spouting off on Twitter, which should come out of his own budget.

And Labrador shouldn’t consider outsourcing this work to other attorneys in his office, who take orders from him and stand to gain by supporting his position. For example, Solicitor General Theo Wold — only six minutes after Labrador’s original tweet, since the smart move in the new attorney general’s office is to deliver polished apples quickly — seconded his boss’s opinion.

“State AGs are the strongest line of defense against the Left’s national campaign to force ranked choice voting on our elections. Leave this failed idea in NYC and Oakland,” Wold wrote on Twitter.

This is yet another instance of what Labrador’s electoral opponents warned about on the campaign trail: He is a career politician, and his political instincts constantly get in the way of his ability to fulfill his duties as attorney general.

However he wants to pitch it, Labrador’s opposition to the initiative isn’t a matter of principle or even ideology. It’s a matter of survival. He knows that he might not have a job if all Idahoans, rather than the small sliver of Idaho voters who participate in the closed GOP primary, selected the attorney general.

It’s too late to put the genie back in the bottle now. Labrador should appoint outside counsel to perform the duties of the Attorney General as outlined in Idaho Code, so that the public can be sure that the job is done impartially.

The right to legislate directly is a power reserved to the people, a fundamental right with at least equal standing as the Legislature’s power to make laws, as the Idaho Supreme Court made clear in Reclaim Idaho v. Denney. Idaho’s attorney general has rendered himself incapable of safeguarding that right and so should step out of the way and allow someone who is capable of doing that job to do it.

Bryan Clark is an opinion writer for the Idaho Statesman based in eastern Idaho.