Judge grants hearing in fight over referendum

Fourth Circuit Judge Patrick Miller granted a hearing Thursday after the attorney general's office filed a motion for summary judgment in the case against Idahoans for Open Primaries.

As in his original complaint to the Idaho Supreme Court, Attorney General Raúl Labrador is seeking a preliminary injunction that would keep the open primary initiative from the November ballot.

Miller denied the attorney general's request for discovery or further evidence from Idahoans for Open Primaries, calling the situation “extraordinarily unusual.” However, the judge agreed to hold a hearing to argue the motion for summary judgment at 10 a.m. Wednesday, using his discretion to expedite the hearing.

“My first reaction is that you have a really tough fight ahead of you,” the judge told Solicitor General Alan Hurst.

Idaho Attorney General seeks to invalidate Proposition 1 petition signatures

Generally, a case is granted summary judgment after all evidence has been presented and further trial has taken place. The Idaho Supreme Court dismissed the attorney general's lawsuit earlier this month on procedural grounds without hearing arguments.

The Attorney General is asking the court to declare all signatures collected in support of Proposition 1 “null and void.” This would either cause the Secretary of State to remove the initiative from the ballot or force the initiative's sponsors to withdraw it from the ballot.

The arguments focus on the initiative's name, “Open Primary,” and claim that it is misleading to petition signers and potential voters.

The Attorney General's Office had previously stated that the initiative would “establish a 'top four primary' that would completely eliminate party-run primaries. Parties would then be able to support any candidate they wanted, but they would no longer play a role in determining the candidates who run in the general election.”

Deborah Ferguson, attorney for Idahoans for Open Primaries, said her clients have not had a chance to gather evidence and summary judgment typically cannot be sought until 21 days after a complaint is filed. She also pointed out that while the attorney general's office has four signatures from people claiming they were misled, that should not invalidate the more than 74,000 signatures approved by county officials across the state.

Ferguson intends to file a motion to dismiss the lawsuit, she told the court.

The voter initiative, which will appear on the 2024 ballot as Proposition 1, would change Idaho's primary elections by placing candidates from all political parties on a single open ballot. The initiative would allow all registered voters to vote for any primary candidate regardless of party affiliation, whereas currently only registered Republicans are allowed to vote in the closed Republican primary. The top four candidates in the new primary system would advance to the general election. The initiative would also create a new runoff voting system for Idaho's general elections, commonly referred to as ranked choice voting.

Lawyers in the case were told they must submit their legal arguments by noon Tuesday so the judge has time to read them before Wednesday's hearing.

This story was originally published by Idaho Reports on Thursday, August 29.