Judge agrees to hearing AG Raúl Labrador’s request in Idaho open primaries initiative

A fast-moving lawsuit over a ballot initiative to end Idaho’s closed party primaries is headed for a hearing about whether the case can be wrapped up quickly without a trial.

Idaho Attorney General Raúl Labrador sued a coalition backing the measure to stop it from making it on the November general election ballot in Idaho. The initiative would create a nonpartisan primary open to all voters, who would pick the top four candidates to move on to the general election. Voters would then rank their candidates in order of preference in the general election.

Fourth Judicial District Judge Patrick Miller gave Labrador a boost by agreeing to hold a hearing Wednesday, Sept. 4, to consider his request for summary judgment. If granted, the summary judgment would allow Miller to issue a decision on whether the initiative appears on the election ballot without a trial.

“We appreciate the court’s expedited scheduling for this case as we requested, and giving this matter the attention it deserves,” a spokesperson for Labrador, Dan Estes, told the Idaho Statesman by email.

But while Miller said he aimed to keep an open mind as the case proceeded, he indicated that he may be unlikely to side with the attorney general’s arguments, and may be unable to assess the case on such a short timeline.

Lawsuits usually take months or years to resolve, but this court will only have weeks to consider the matter before the election happens. The case has already pushed well past an Aug. 8 deadline when Secretary of State Phil McGrane said he had to produce a voter pamphlet about the initiative.

“The attorney general has a heavy burden under summary judgment,” Miller told the attorneys, referring to the legal standards that parties have to prove for a case to go their way. “Right now I’m thinking you’ve got a big hill to climb to get there.”

Miller added that he was perturbed by the implications of the lawsuit, which would be “catastrophic” to the signature-gatherers if he ruled in their favor and excised their measure from the November ballot. He also said he wasn’t sure there is a legal mechanism for him to do so at this late date, after the secretary of state has already approved it.

Since Labrador first took on the ballot measure this summer, he has been working against a ticking clock, with the election less than eight weeks away. His attorneys have asked the court to deal with the case on an extremely expedited timeline.

Miller said he hopes to get a better sense of the parties’ arguments at the hearing next week, but that he may end up determining that he still needs more time to rule on the matter. The lawsuit rests on the attorney general’s contention that volunteers used deceptive language to advocate for reestablishing an “open primary,” which is more specifically a “top-four primary.”

“This entire initiative is based around false statements,” Alan Hurst, the attorney general’s solicitor general, told the court.

Deborah Ferguson, the lawyer for the coalition backing the initiative, Idahoans for Open Primaries, called the lawsuit against her clients a “real head-scratcher” that has so far proceeded in an “unorthodox” manner. The group has denied the attorney general’s allegations.

Ferguson said the Attorney General’s Office ought to have brought its deception allegations to light sooner, and that while four Idaho residents have said they were misled by the petition in court filings, if true, the attorney general still needed evidence of more than 12,000 other instances to invalidate enough signatures to render the petition below the minimum signature threshold.

Miller said at the hearing that he suspected many people who signed the petition understood and supported it.

Initiative would create open, nonpartisan primaries

If passed by voters, the initiative would end the more than decadelong period since the Idaho Republican Party closed its primaries. That arrangement allows only registered GOP voters to participate in their primary, which in Idaho often determines the outcome of the general election.

Labrador’s lawsuit argues that the “open primaries” description is inaccurate and that Idahoans for Open Primaries obtained signatures deceptively by concealing the ranked choice voting part. His court action asks the court to throw out the thousands of signatures that have been collected.

The attorney general initially took the Idahoans for Open Primaries to the Idaho Supreme Court in July, but the court dismissed his lawsuit earlier in August, ruling that allegations about deceived voters needed to be handled in the lower courts.

That led him to refile his case in Boise days later. His lawsuit includes statements from several voters — at least three of whom are affiliated with the state’s Republican Party — arguing that they attended an event held by the signature-gatherers and did not feel the initiative was properly described to them.

The organizers of the initiative have called the lawsuit “nothing more than an attempt to interfere with the election,” Luke Mayville, a spokesperson for Idahoans for Open Primaries, told the Idaho Statesman in a written statement. Labrador has previously said on social media that the initiative contains “bad ideas coming from liberal outside groups.”

“The AG believes that he, and not the people of Idaho, should decide the issue of open primaries,” Mayville said.

Mayville said he felt the lawsuit is “certain to fail because his argument has no basis in the facts.”