Idaho AG Raúl Labrador ordered to rewrite titles of ranked-choice voting ballot initiative

Idaho Attorney General Raúl Labrador must rewrite the titles to a ballot initiative that would overhaul primary elections in the state, the Idaho Supreme Court ruled Thursday.

The decision comes after Idahoans for Open Primaries, a coalition seeking to make primary elections more accessible and establish a ranked-choice voting mechanism in Idaho, sued Labrador. The group alleged that the first-term Republican attorney general made false and misleading statements to the public about the group’s ballot initiative.

Idaho law directs the attorney general to review proposed ballot initiatives and assign them “ballot titles,” which summarize the purpose of an initiative and appear on the ballot when voters weigh in. After the coalition announced its initiative, Labrador tweeted that “these bad ideas coming from liberal outside groups” should be defeated.

The Idaho Supreme Court unanimously ruled Thursday that Labrador’s titles were likely to cause prejudice against the measure.

“Today’s decision is a major victory for the voters of Idaho,” Bruce Newcomb, a member of Idahoans for Open Primaries and former Republican speaker of the Idaho House, said in a news release. “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.”

Justices awarded the coalition attorney fees and directed Labrador to rewrite the ballot titles by Friday, as the coalition faces a deadline to collect signatures.

Labrador spokesperson Beth Cahill in a statement said that despite the loss, she’s “pleased” the justices validated the attorney general’s opinion that the initiative “does not propose an open primary and does propose ranked-choice voting.”

“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,” Cahill said. “We will promptly submit revised ballot titles accommodating the Idaho Supreme Court’s other holdings and in accordance with the court’s schedule.”

Does language inflame anti-California sentiments?

If approved by voters, the ballot initiative would replace Idaho’s primary election system with a “top four” election. In that system, all candidates from each party participate in the same primary, and the four candidates with the most votes advance to the general election. Voters would then choose the winner through ranked-choice voting in the general election.

Labrador described the proposed system as a “nonparty blanket primary.” Labrador failed to show that “nonparty blanket primary” is a common phrase that refers to that type of election, Justice Colleen Zahn wrote on behalf of the court.

“We have been unable to identify any court in the United States, including the United States Supreme Court, who has used the term in a published decision,” Zahn wrote. “It also does not appear that the term has been used elsewhere. Instead, it appears that the term is one of the attorney general’s own creation.”

During a hearing Monday, Idaho Solicitor General Theo Wold said the phrase “blanket primary” has been used to describe similar voting systems in Washington and California. Attorney general officials looked to “analogous sister states” when seeking descriptions of the proposed primary system, he said.

Wold also tweeted opposition to ranked-choice voting, calling it a “failed idea” from New York City and Oakland, California. Attorneys general are “the strongest line of defense against the left’s national campaign to force ranked-choice voting on our elections,” Wold tweeted.

Justice Robyn Brody on Monday questioned whether the attorney general’s intent in using “blanket primary” was to inflame anti-California or anti-Washington sentiments among Idaho voters.

“This is what they do in California, this is what they do in Washington,” Brody said. “Doesn’t that drive home the point that the petitioners are making here, which is you’re dooming this to failure before it even gets out of the blocks?”

Thursday’s decision also noted that the U.S. Supreme Court previously ruled California’s “nonpartisan blanket primary” system unconstitutional but later upheld Washington’s “nonpartisan blanket primary.”

Using a “slightly different” phrase to describe the Idaho proposal could lead voters to believe it “has been or would be held to be unconstitutional, when in fact it has not,” Zahn wrote.

Coalition’s request for deadline extension rejected

The court rejected the coalition’s argument that “open primary” should be included in the ballot.

The Idaho Republican Party closed its primary election in 2012, meaning only registered Republicans may vote in the election, while the Democratic Party has an open primary, so anyone can participate regardless of party affiliation. The ballot initiative would create one primary election, open to all voters.

“If you were asking an average Idaho voter that wasn’t a political scientist or had background in this area of expertise, wouldn’t they likely report that the Republican Party in Idaho has a closed primary and the Democratic Party has an open primary?” Justice Gregory Moeller said Monday.

Instead, Zahn suggested, the “most accurate description” for the proposed election system is a “top four primary.”

Idahoans for Open Primaries hopes to place the initiative on the ballot for the November 2024 election. In order to qualify, the group must collect signatures from 6% of Idaho voters who were registered for the last general election — nearly 63,000 — along with signatures from 6% of registered voters in 18 of 35 legislative districts. The deadline is May 1.

Attorneys for the coalition asked the court to direct the Idaho secretary of state to extend that deadline in light of the litigation over ballot titles.

“Bad titles set the issue back severely,” Deborah Ferguson, a Boise attorney representing the coalition, said Monday. “We’ve lost about five weeks, and in the summer, an essential season.”

Justices rejected the request because Idaho law doesn’t provide a method for extending the deadline. However, Zahn wrote that the court would “ensure a timely resolution” to the case.