Since 2011, political parties in Idaho have been able to choose to close their primary to voters who are not affiliated with their party. For example, only registered Republicans can vote in the Republican primary. The Constitution Party and libertarian primaries are also closed; only the Democratic primary is open to any voter.
Some say that disenfranchises a lot of people. About one million Idahoans are registered to vote, but almost 300,000 of them are not affiliated with any political party, which means right now they can only vote in the democratic primary.
In November, voters will be faced with Proposition 1. It’s a citizen initiative that will do two things if passed: it would open up all primaries in Idaho, and it would create a new voting system known as ranked choice voting.
This week, we’re looking at the open primary side of Prop 1. Next week we’ll tackle ranked choice voting.
Luke Mayville with the Idahoans for Open Primaries Coalition and Jason Mercier, the Vice President and Director of Research at the Mountain States Policy Center, joined Idaho Matters to talk more about Proposition 1.
Read the full transcript below
GAUDETTE: More Idaho Matters now from the studios of Boise State Public Radio News. I'm Gemma Gaudette. Since 2011, political parties in Idaho can choose to close their primary to voters who are not affiliated with their party. For example, only registered Republicans can vote in the Republican primary. The Constitution Party and the libertarian primaries are also closed. Only the Democratic primary is open to any voter. Now, some say this disenfranchizes a lot of people, about 1 million Idahoans are registered to vote, but almost 300,000 of them are not affiliated with any political party. Which means right now they can only vote in the Democratic primary. In November, though, voters will be faced with proposition one. It's a citizen's initiative that will do two things. If passed, it would open up all primaries in Idaho, and it would create a new voting system known as ranked choice voting. So this week we're going to only look at one part of proposition one. We are going to look at the open primary side of proposition one. Next week we will tackle ranked choice voting. So be sure you tune in then. So here to talk about prop one is Luke Mayville with the Idahoans for Open Primaries Coalition. This is the group that gathered enough signatures to put proposition one on the ballot. Welcome back to the show, Luke.
MAYVILLE: So good to be with you, Gemma.
GAUDETTE: So, Luke, how did the idea to open up Idaho's primaries come to pass in your organization?
MAYVILLE: Well, it's important to understand that we've only had closed primaries for the last 12 years. Prior to 2011, Idaho had an open primary system for over 40 years, and really, ever since the system was closed back in 2011, a lot of people have been very dissatisfied with it all across the political spectrum. And the idea for this current initiative really bubbled up when a number of community leaders around the state came together across the political spectrum, including the former speaker of the House, Republican Bruce Newcomb, who was, you know, one of the founders of this campaign, who really who came together with me and others and really started thinking about how could we restore everyone's right to vote in primaries, how can we open up the system and make sure that everyone has a voice?
GAUDETTE: So as I mentioned, Luke, right now since 2011, we have closed primaries. So if you are a registered Democrat, um, you can you vote in the Democratic primary. If you are a registered Republican, you you vote in the primary as a Republican, you cannot vote. Only Republicans can vote in the Republican primary. And as I said, we have hundreds of thousands of Idahoans who don't affiliate with any party. So therefore, the only primary they can vote in is is the Democrat primary. So under proposition one, how would our state's close primary system change?
MAYVILLE: Proposition one would create a nonpartisan, open primary where all voters have a right to participate. So anyone who is legally eligible to vote would be free to participate, no matter how you're registered. Uh, all candidates would appear on the same ballot. So it would no longer be separate party primaries, where you have to figure out which party to register for in advance of the election. You just show up. And if you are legally eligible to vote, uh, you can and you can make sure that you're registered to vote and you vote in the primary and that's it. And, um, all candidates would appear on on that same ballot. Uh, and, and we'll talk more about this, uh, in the future. But, but the, uh, the top four candidates from that primary would go on to the general election. And it doesn't matter what party they come from, it's just whichever four candidates receive the most votes will go on to the general election.
GAUDETTE: So basically, the primary ballot would look the same as the general election ballot looks currently if proposition one were to pass.
MAYVILLE: Not quite, because, uh, there could be there won't just be, you know, one Republican running and one Democrat running. Um, a typical primary election ballot, say, if you're voting for governor, could be four Republicans, two Democrats, two independents. All on the same ballot as a as a voter. And this is really important because we talk a lot about ranked choice voting in the primary. There's no ranking in the proposal. In this proposal, in the primary, you just show up and choose your favorite candidate. So say you're voting for governor. There might be several Republicans, a few Democrats, a few independents. You just choose. You just show up and you and you pick your favorite candidate. It's really about the simplest type of primary election that you could imagine.
GAUDETTE: So I want to talk about being disenfranchized, because you have said that a quarter of Idaho's registered voters are being left out of three of our left out of our primaries, at least three of our primaries. Because because they're closed. Why can't folks just register for whatever primary they want to vote in?
MAYVILLE: What we're hearing from voters all across the state is that it is just not right. That if you're an independent voter, you're an independent minded citizen, and, uh, and you want to be an independent, you should not be forced to join a political party just to exercise your right to vote. You should be free to participate in that primary election. And now I know opponents will come back and say, well, if they don't want to vote in the primary, they can still just come back and vote in the general election. Well, that's really not good enough for for people across the state who have this complaint, because we all know that it is the primary elections that really matter in Idaho. Um, because in Idaho we are, you know, mostly a one party state where where one party dominates. And that means that whoever wins the primary and in this case, the Republican primary, uh, almost always wins the general election. So we have a situation where there are these 270,000 independent voters who are being shut out from voting in the election. That really matters, which is the primary election. And it's not good enough to tell them, oh, you can just come back and vote in November. They want they want to be able to freely participate in the election that really matters.
GAUDETTE: So, Luke, there has been concern by some that proposition one might be unconstitutional because some say it puts two different issues on one ballot. You have open primaries and you have ranked choice voting. We are going to talk more in our next segment with another guest about that. But I'm curious about how you respond to those concerns about this being unconstitutional, because given there could be deemed two separate issues on the ballot. I mean, on this initiative.
MAYVILLE: Well, there are a number of there are a number of different claims that are made of how proposition one could be unconstitutional. We're not we're not concerned about those claims, because the fact is that in both federal courts and state courts around the country, those claims have been taken up and rejected by the courts. And these reforms have been upheld over and over again in court. When it comes to the single subject rule and the claim that proposition one is two separate subjects and therefore might be unconstitutional. There's a long history in Idaho of the Idaho Supreme Court looking closely at cases like this and finding as long as there's one broad, unifying subject, a proposal is perfectly constitutional. So in this case, whether it's open primaries or ranked choice voting, everything falls under the subject of elections. So the broad subject of elections is the single subject. And it's perfectly okay to have two different reforms of elections in one initiative. The courts have made that very clear. So we are 100% confident that if the voters passed proposition one in November, it will be upheld by the Idaho Supreme Court.
GAUDETTE: So, Luke, um, for folks who may not be familiar, you helped lead a successful citizen campaign to put the question of Medicaid expansion on the ballot. You have a history with Idaho Citizen Initiative process. What are you hearing? What have you seen on the ground from folks about Idaho's closed primaries? Because I will just anecdotally say this. When I walk around my neighborhood, I see vote yes and I see vote no signs.
MAYVILLE: We're seeing more excitement and engagement around this initiative than any of the previous initiatives. I think people believe strongly that the stakes are high, that that this initiative really matters. And it's not that. Previous campaigns. Previous campaigns we did that were about really important issues as well. Um, but one way to think about proposition one and this whole issue of open primaries, it's really getting all the way to the root of the problem. Uh, other issues we've taken on have been, you know, you could you could talk about them more as like, you know, we're we're trying to hack away at some of the rotten branches in the system. With this initiative, we're really going to the root and we're going to the root cause of so many problems in Idaho, because the root of the problem is that so many voters do not have a voice in our current political process because of the closed primary elections that shut out so many independent voters. And it's not just that voters are denied a voice. It's that when so many people are shut out, we end up electing officials who don't represent the broader community and don't respond to the needs of a broader group of voters in the state. And that means we end up with politicians getting elected who aren't accountable to every voter. Instead, they're only accountable to a small slice of the population that participates in one closed primary election. That's part of why people are so excited about this opportunity to vote yes on proposition one.
GAUDETTE: Well, I want to thank you for taking time to talk with us, Luke. We've been speaking with Luke Mayville with Idahoans for Open primaries coalition about proposition one and open primaries. And we're continuing our discussion about proposition one and open primaries with Jason Mercier. He is the vice president and director of research at the Mountain States Policy Center. Jason, welcome to the program.
MERCIER: Good afternoon. Thank you for having me on.
GAUDETTE: So for folks who aren't familiar, can you briefly tell us what the Mountain States Policy Center is?
MERCIER: Yes. Mountain States Policy Center is a nonpartisan public policy research organization were headquartered in Idaho. We have a regional focus. We cover Idaho, Montana, Wyoming and Washington and providing analysis on legislation and in this case, ballot measures in those states.
GAUDETTE: So you said you're a nonpartisan organization. So does that mean you do or do not take a stand or a side on initiatives like proposition one?
MERCIER: Yeah. We are not in the business of telling voters how they should vote. That's up to them to do after doing their research and analysis. Well, the role that we play in this example of proposition one is we reviewed the review, the ballot language. We looked at how primaries and ranked choice voting occurs nationally, dug into some of the case law, and then looked at some of the fiscal thing and then tried to put all that information in one resource for voters. So as they go through it, they can decide what's best for them.
GAUDETTE: So I want to talk about open primaries specifically. Right now, all primaries in Idaho are closed with the exception of the Democratic primary. Does that system work right now?
MERCIER: Every state is a little bit different. So Idaho is one of nine states right now with those closed primaries. And I was actually partially closed because it's up to the private parties if they want to accept those nonaffiliated ballots, as you indicated, the Democrats do. The Republicans don't. There are states with open primaries that are Partizan, and then there are just a handful of states, examples being Washington, California, Alaska, Nebraska, and Maine that have what are truly open primaries. They're nonpartisan multi party primaries. And those are kind of the options you have across the country.
GAUDETTE: So according to Boise State's Public Policy survey, 57% of people either somewhat or strongly favor a top four primary system. However, many members of political parties say the parties should be able to decide who votes in their primary. And I know that your policy center has a discussion online about proposition one and how it covers two issues. Open primaries and ranked choice. Ranked choice voting. In your center's opinion, are those two distinct issues?
MERCIER: They are. And in fact, the ballot summary itself indicates that when you look at the official ballot summary for proposition one, it says the measure is to replace voter selection of party nominees with a top four primary. Number two require ranked choice voting for general elections. And then it says this measure proposes two distinct changes. So the summary itself already kind of tips the hat that these are two different issues that are being combined into one proposal. And I think that's somewhat of a frustration as we analyze this, because there's a lot of arguments to be made for open primaries, in our opinion. There's a lot of arguments against ranked choice voting, but Idaho voters don't get an option with them being combined into one. And I think when you look across the country, there's a similar debate happening right now in Montana. They're also having a debate about top four primaries and what happens if you enact that type of system. But they have two separate ballot measures. They have one ballot measure for a top four, and then they have one ballot measure about requiring 50% to win an election. And I think the reason why they've done that is because Montana's Supreme Court has consistently struck down ballot measures for single subject violations.
GAUDETTE: Okay, so with that said, though, our Supreme Court here in Idaho did not strike that down. And as Luke Mayville mentioned in our last segment, you know, our Supreme Court has basically said it's it's it's about voting. So it's it's one issue.
MERCIER: Yeah. So the Supreme Court ruling earlier this year was not on the merits of single section. It was on it being a pre-election challenge. And in my opinion, the court got it right. Three election challenges before the voters get to weigh in on something are disfavored nationally. And the reason being you don't stop the legislature from voting on a bill that might be unconstitutional. You let them go through their process, and then if they're standing, the court weighs in. So I don't disagree at all that the court had earlier this year dismissing the pre-election challenge. But that opinion made it very clear that if this were to pass, then it would be right for legal review to see if it violates single subject.
GAUDETTE: So do you think there are concerns about the constitutionality, constitutionality, then, of prop one. And because. Can you talk a little bit about Idaho's single subject rule?
MERCIER: Yes. So single subject restrictions are in almost every state constitution across the country, because they're supposed to keep from what's called the log rule, where you combine different issues, maybe a really popular issue with something that's unpopular. And they're supposed to apply both to legislation passed by lawmakers and to ballot measures. Sometimes, however, we've seen courts treat ballot measures a little more stringently than they do legislation passed by the legislature. And we have some examples. Recently I mentioned the Montana one and why I think those are two separate ballot measures right now in Montana, because Montana Supreme Court has struck down tax. Ballot measures. There was a property tax, one that would have restricted property tax increases. But the court struck it down because it also capped the taxable value. Now that seemed related. But the court said they were two different deals. Same thing happens in South Dakota a few years ago on on marijuana legalization court struck that down because it dealt with recreational marijuana, medical marijuana and hemp. And in the court's determination that was three different subjects. And to the West in Washington, they consistently have tax restriction ballot measures struck down. Most recently, there was one on transportation fees because they had to do with local transportation fees and state transportation fees. And the court said those were two separate subjects. So when you look at proposition one and the ballot summary itself is saying these are two distinct policies. I think that's a kind of a red flag for the court that you're combining two different issues into one proposal.
GAUDETTE: Mhm. So if proposition one passes, um, what does your center think will happen in regards to lawsuits over its constitutionality? Could we see that happen even though, you know, our Supreme Court made the decision that they made?
MERCIER: Yeah. Again, if you go back to the decisions they made, they were not ruling on the single subject. They were ruling on the pre-election challenge. And they said that, okay, this is not right for legal review until after the election, but after the election, then those arguments can be made. And based upon the fact that the attorney general did a pre-election challenge, I think it's 100% certainty he would do a post-election challenge if it were to pass. And at that point, it is ripe for review because then you actually have a passed proposal. So I think we just need to be careful that what the court did earlier was not on the merits of single subject. It was on the procedural pre-election challenge.
GAUDETTE: Okay. So then if proposition one were to pass and let's say there is a lawsuit that is brought forward saying it is unconstitutional because of Idaho single subject rule, do you think there is a possibility then, that even though proposition one passed, it could be overturned by by the courts?
MERCIER: Most definitely. That's a possibility. And because again, we have those examples from across the country of how courts look at ballot measures, they're supposed to do the same thing with legislation. You know, we had another example earlier this year on the state's transportation budget. And the court didn't quite get to the single subject ruling because they said nobody had standing to bring that lawsuit. But, you know, those apply both for ballot measures and legislation. If you got two different topics in there, it's a possibility they could be struck down.
GAUDETTE: Do you think there's confusion out there among voters about what a vote for proposition one will do?
MERCIER: Well, when we started hearing about proposition one, it sounded like it was geared toward restoring Idaho back to the the open primary that had been in existence a decade ago. When you start digging into the text, though, you realize this is a different type of primary being proposed. The top four. And you combine it with ranked choice voting. So I don't know if you could be confused if you've actually read the ballot packs and read the ballot measure, and that's incumbent upon a voter to do to actually know what they're voting on. But it does feel like a little bit differently of a proposal than what was initially advertised.
GAUDETTE: So with that said, Jason, if, um, if proposition one had been put on the ballot, but there were or it was separated. So you have open primary, you have ranked choice voting, or maybe you just have open primary on the ballot. There couldn't be. I mean, you can always bring a lawsuit. However, it would seem to me that it would be more difficult to say to argue this single subject rule.
MERCIER: Yeah, 100%. These were two separate ballot measures. There would be no single subject argument, because then you'd have two different proposals before you, just like you have in Montana. And I think that when it comes back to the issue of the open primaries, was a little bit of a surprise to me in looking at this. It it. Modeled this after the brand new proposal in Alaska that just went into effect in 2022, which was a top four ranked choice voting. Alaska is the only state in the country that has a top four. I think that the safer route. The opponents of an open primary could have done is to use the Washington top two, because that already has the stamp of approval from the US Supreme Court. When this passed in the early 2000, the top two in Washington, the Republicans and the Democratic Party sued, saying it violated the First Amendment rights, went to the US Supreme Court. And in a 7 to 2 opinion opinion, Justice Thomas upheld that top two primary because, he said, the political parties can still do whatever they want as far as communicating who their, uh, advocate for their number one position is. But in doing a top two, this is no longer a party nominating process. This is a process of determining who has the most support and moving them forward to the general election. So I think it's just a little bit of surprise that the opponents of this didn't go that tried and true route, and instead with the new novel Alaska approach that arguably could be repealed by voters this year in Alaska.
GAUDETTE: So I only have a minute left with you because of how this proposition is written. It sounds to me that there is a concern from your end, from your center that we're going to we are inevitably going to see a lawsuit if prop one passes.
MERCIER: Yeah, I think it's a certainty. If this passes, you'll see a lawsuit, whether it comes from the attorney general or it comes from private political parties. I think that going back to the Washington example and the other examples across the country of an open primary, when they when the proponents decided to go with the top four and combine it with RCP and put those together to where the voters couldn't pick and choose, I think it set it up for this, this frustrating debate that we're having right now.
GAUDETTE: I really appreciate you taking time to talk with us about this and to really go through this process. We've been speaking with Jason Mercier. He is the vice president and director of research at the Mountain States Policy Center. We've been discussing proposition one and open primaries in Idaho. Don't forget, next Tuesday, we will be talking about the other half of proposition one, which is known as ranked choice voting. So make sure you tune in then as we break that down as well. Thanks so much for listening to Idaho Matters. Boise State Public Radio and Idaho Matters are members of the NPR network. It's an independent coalition of public media podcasters. You can find more shows in the network wherever you get your podcasts. I'm Gemma Gaudette. We'll see you tomorrow.
