Idaho Secretary of State Phil McGrane is preparing for the open primaries/ ranked-choice voting ballot initiative to appear on Idaho’s Nov. 5 election ballots, even as Attorney General Raúl Labrador advances a lawsuit attempting to block the initiative.

In an interview Wednesday with the Idaho Capital Sun, McGrane said it is his duty to protect Idahoans’ rights to vote and rights to bring a ballot initiative or referendum forward for a vote. Unless or until there is a court order to stop, McGrane said, he will continue to prepare ballots and design the Idaho voters’ pamphlet with the ballot initiative included.

“That’s why we are here, to defend the initiative process and the Constitutional right of Idaho citizens to exercise the initiative. It is not about the contents of the initiative. It is about, this is a right and we are overseeing the process.”

In Idaho, a ballot initiative is a form of direct democracy where the voters vote on whether or not to pass a law, independent of the Idaho Legislature. 

On Election Day, the open primary/ ranked-choice ballot initiative will appear as Proposition 1. It would require a simple majority of the votes to pass. 

In addition to the ballot initiative, Idaho voters will also vote on a proposed constitutional amendment known as House Joint Resolution 5, which would add a clause to the Idaho Constitution stating that non-U.S. citizens are not allowed to vote in Idaho elections. The proposed constitutional amendment would also require a simple majority of the vote to pass. 

In a 2021 ruling involving a different case, the Idaho Supreme Court called ballot initiatives and referendums “fundamental rights, reserved to the people of Idaho, to which strict scrutiny applies.”

Labrador filed a lawsuit last week alleging that the open primaries/ ranked-choice ballot initiative was deceptively pitched and would violate the Idaho Constitution’s requirement that laws address only one single subject. 

Labrador is seeking to block the ballot initiative from the election or to force McGrane to invalidate the signatures that were submitted to qualify for the election. Supporters of the ballot initiative, including Reclaim Idaho co-founder Luke Mayville, said Labrador’s lawsuit is a political stunt that was filed because Labrador is afraid of letting Idaho voters vote on the initiative.  

One of the quirks of the case is that the Idaho Attorney General’s Office is representing multiple parties in the case – Labrador, who filed the lawsuit, and McGrane, who is one of the people Labrador sued attempting to block the initiative. 

On Tuesday, McGrane told the Sun that Idaho law states that state agencies and officers shall not be represented by any attorney other than the attorney general. While the governor, the Idaho Legislature and the judicial branch have the authority to instead hire outside, the Idaho Secretary of State’s Office does not have that authority, McGrane said. 

The Idaho Supreme Court issued an order Monday requiring Labrador to show why his attorneys should not be disqualified from representing McGrane. Labrador’s office responded Tuesday with filings indicating that Labrador himself is not also representing McGrane and that he appointed other deputies to represent McGrane, insulated them from his supervision and established a screening process to keep him and other deputies from learning confidential information about McGrane’s case. 

“This decision rested on careful analysis of the statutes and rules that govern the attorney general’s conduct,” Solicitor General Alan M. Hurst and two other attorneys wrote in a court filing Tuesday. 

Reached Wednesday, a spokedman for Labradr’s office declined to comment on the lawsuit but referred the Sun to Tuesday’s court filings.  

McGrane told the Sun his office has been working closely with its assigned deputies from the Idaho Attorney General’s Office and feels like their side is being represented fairly. As evidence, McGrane pointed to a motion to expedite the case that his side filed July 24. 

McGrane told the Sun that his office is busy preparing for a major election Nov. 5 that could feature record voter turnout. McGrane said the Idaho voters’ pamphlet that describes that ballot initiative and proposed constitutional amendment must be designed by Aug. 9 in order to meet the deadline in Idaho law to mail the pamphlet to voters by Sept. 25. 

Additionally, absentee ballots must be designed and printed before they are mailed out Sept. 21 so that members of the military may receive and return their ballots on time. 

“We have to resolve this fast,” McGrane said. “We don’t get to hit pause or change Election Day. This is a national election.” 

If approved, the ballot initiative would make changes to Idaho’s primary election and general election. 

First, it would end Idaho’s closed party primary elections. Since 2011, Idaho has had a law that says political parties don’t have to allow voters to vote in their primary election if the voters are not formally affiliated with their political party. In Idaho, more than 265,000 of the state’s 1 million voters are unaffiliated voters who are not allowed to vote in closed party primary elections. The closed primary law does allow political parties to instead choose to open their primary elections to outside voters, but only the Idaho Democratic Party has done so, a spokeswoman for the Idaho Secretary of State’s Office previously told the Sun. 

The Republican, Libertarian and Constitution Party primary elections were all closed. 

Under the ballot initiative, all candidates and all voters would be allowed to participate in the primary election, regardless of party affiliation. The four candidates that get the most votes would all advance to the general election, regardless of party affiliation. 

The ballot initiative would also change Idaho’s general election to create ranked-choice voting, which is also referred to as an instant runoff system. Under that system, voters would pick their favorite candidate and have the option to rank the remaining candidates in order of preference – second, third and fourth. The candidate with the fewest votes would be eliminated and those votes would instead go to the second choice of candidate on those ballots. That process would continue until there are two candidates left and the candidate with the most votes is elected the winner. 

In a July 3 letter to legislative leaders, McGrane wrote that it could cost at least $25 million to $40 million to replace Idaho’s vote tabulation systems to count ranked-choice voting ballots. But supporters of the initiative said the state doesn’t need to replace its voting systems because there is low-cost software available that could be certified for use in Idaho to count ranked-choice ballots.