As predicted, Labrador’s analysis of Idaho’s open primary initiative is nakedly partisan | Opinion

Last month, I argued that Attorney General Raúl Labrador should appoint outside counsel to perform an analysis of the open primary initiative required by Idaho law. He’d already declared his opposition to it and so couldn’t be counted on to do his job objectively.

Now the legal analysis is in, and it’s precisely as stilted and contrived as you would expect.

When an initiative is submitted to the secretary of state, Idaho code tasks the attorney general with preparing a legal analysis, purely as advice to those who submitted it. The idea is that ordinary citizens submit initiatives, so it helps to have their drafting get a second look from a lawyer before it goes to voters.

But predictably, Labrador’s opinion fails in its task of impartiality and is instead nakedly political.

That includes hiring politicians to draft it. Former longtime Caldwell Republican Sen. Jim Rice, who was defeated in last year’s primary by Sen. Abby Lee, now serves as a deputy attorney general and is one of the two lawyers credited with the analysis.

Rice can’t be considered a legal authority on the Idaho Constitution. He has used government authority to violate it repeatedly. For example, he cast the deciding vote in favor of the 2019 bill to take revenge on voters for approving Medicaid expansion by making it effectively impossible to get an initiative on the ballot. The Idaho Supreme Court unanimously agreed that this law was unconstitutional.

The recently released opinion reads like a shotgun opposition brief, raising every conceivable basis for challenging the law without offering any proposed fixes.

It takes issue with the use of the phrase “open primary” in the initiative title, claims that the initiative could violate the rights of political parties, claims it forces voters to engage in compelled speech and uses shaky analysis to conclude that the initiative addresses more than one subject.

It also makes flat-out false assertions about the initiative. It claims that voters would have to rank all candidates that appear on the ballot in the general election, but open primary initiative spokesperson Jim Jones — himself a former Republican attorney general and Idaho Supreme Court justice — said that’s “just baloney.” Under the ranked-choice system, voters would be able to vote for no one, only one candidate or multiple candidates according to their wishes.

“You don’t have to vote for more than one in the general election. It’s completely up to you,” Jones said.

Remarkably, the “analysis” even concludes that the initiative would violate the U.S. Constitution because it would allow the people to decide how members of the U.S. House and Senate for Idaho are elected. This conclusion relies on the fringe “independent state legislatures” theory under which state legislatures are not bound by their respective state constitutions when it comes to regulating federal elections.

It’s obvious how stilted Labrador’s analysis is when you compare it to those put together by his predecessor.

Previous opinions from the office under former Attorney General Lawrence Wasden did sometimes find areas where a proposed initiative could be problematic, for example, but it generally also suggested minor fixes that could be made to alleviate the constitutional concern while achieving the intent of the initiative’s drafters.

For example, when Wasden’s office provided feedback on the Quality Education Act — which would have raised taxes on corporations and the wealthy to provide more education funding — one issue was that the tax code had been revised between when the initiative was drafted and when it was reviewed. So Wasden suggested a minor fix to avoid an inadvertent tax increase.

This is what it looks like to operate an impartial, professional legal office on behalf of the citizens. It didn’t matter what Wasden thought of the Quality Education Act, his office worked to make sure voters had a chance to vote on the best possible version of it.

Now, Idaho has a partisan office that will instead prepare campaign arguments against the petition at taxpayer expense.

That’s the real problem. Under former GOP Chairman Labrador, the loyalty of the Office of the Attorney General is to the Republican Party, not to the voting public.

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