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Idaho AG's office expresses technical concerns in 'open primary' ballot initiative analysis

The analysis, a standard practice, details a list of possible issues with the proposed initiative that organizers want on the 2024 ballot.

BOISE, Idaho — The attorney general’s analysis for a proposed ballot initiative to change Idaho elections is in. The analysis, a standard step for a ballot initiative campaign, identified issues with clarity and formatting, labeled technically as “matters of style and form.”  

The initiative itself wants to change elections to open primaries and instant runoff general elections, also called ranked choice voting. In short, primary elections would include all political parties. Top four vote getters in the primary, regardless of political affiliation, go to the general election. Voters then rank their top four in the general election with the winner needing at least 50% of the vote.

The analysis on the initiative finds several issues, and to be clear, the AG’s analysis is “advisory only,” and the petitioners are free to “accept or reject them in whole or in part.”

The analysis labels a few issues like “Misleading Use of “Open Primary,” Inconsistent Treatment of Party Nomination/Endorsement,” and very technical “Miscellaneous Matters.”

Headline issues labeled “serious legal defects” include violation of Idaho’s single-subject rule adopted in 2020.

Analysis says: “the so-called 'open primary' 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.”

Retired Idaho Supreme Court Justice Jim Jones is a leader with Idahoans for Open Primaries. He thinks the initiative is clearly one subject.

“It's a phony issue. It's all one subject matter. It's all voting in the primary and general election. If he thinks he's got a problem and wants to challenge it in court, he will lose,” Jones said.  

The “he” Jones is referring to is Idaho AG Raul Labrador. Jones believes the analysis identifying the issues are politically motivated. He points to a recent tweet from AG Labrador that made it very clear that Idaho’s AG did not like the proposed election format.

“I read through the whole thing. I had to take a couple of naps in between. I couldn't believe that they were putting this out as impartial legal advice. But it is sophomoric work,” Jones said.  

The analysis also warns of violations of the United States and Idaho constitutions. One example touches on The United States Constitution and where is states that, “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” It raises a question about citizen initiative impacts on Federal elections.

All issues considered, KTVB asked Jones if there are some legit edits to make and how the campaign feels going forward.

“I don't think what they have brought up as potential constitutional problems will stand up in court. It didn't stand up in court in Alaska, which we've modeled this initiative after. And I don't believe it will stand up in Idaho,” Jones said. “We're comfortable with where we are. We had we had anticipated making a few little tweaks in it that it doesn't require any changes for the potential constitutional issues that he's talking about because they're just bogus.”

The 208 will continue coverage on the topic during Wednesday evening's newscast with an interview with the AG's office for their perspective on technical issues identified in the analysis.

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