Part 1
"After much arm-waving and bumper sticker arguments, I decided to review the actual text of Proposition 1. To my knowledge, no attorney has offered an analysis for the voter. Based on my reading, it should fail for vagueness, complexity, unfairness, and its need for new executive rules. This is Part 1 of 4 where I analyze each new section in the order presented in Proposition 1.
Initially, there are no fewer than 21 typographical errors, some of which are substantive and may require a lawsuit to resolve. Even for the non-substantive errors, one has to question what kind of thinking would result in such sloppy writing. For example, proposed amended section 34-715 has duplicate numbering of its subsections. On these points alone, I would vote NO on Proposition 1 until it was properly written.
Underscoring the sloppy writing is the fact that it repeals Idaho Code section 34-903B, which today prohibits ranked choice voting in Idaho. This is no Progressive Era or New Deal statute, but was passed by the Legislature in 2023. I heard no hue and cry, saw no demonstrations, or read any newspaper editorials or online
complaints about that 2023 law, but suddenly the people need to bypass the Legislature to repeal it? The repeal of existing law is by referendum, not by initiative, and those methods of changing the law appear to require separate petitions and separate processes, see Idaho Code section 34-1801A. It is likely unlawful to combine a referendum and an initiative, because the arguments and effects about a new law will be distinct from arguments and effects of repealing of an existing law. To avoid voter confusion, Idaho has a single
subject rule for legislation. I suspect this initiative cannot be a referendum too, which is another reason for voting NO on Proposition 1.
Proposition 1 has been offered as an open primaries initiative. My review indicates it creates two primaries and two general elections that use different methods. One primary is for precinct committeemen at the county level, compare sections 34-702A, 34-703, and 34-704, and another primary is for all other offices. If not true, why have both a “primary and top four primary?” Then, Proposition 1 creates two general elections, because if only two candidates advance from a top four primary, then “instant runoff voting” [so-called Ranked Choice Voting] for the general election does not apply. There have to be three candidates to use instant runoff voting, see new section 34-1218(2). The election systems under Proposition 1 are too complex, and will trigger heavy lawsuit costs, but only for those individual candidates who can afford suits in Idaho or
federal courts of law. As one who has argued Idaho election law in the courts, Proposition 1 invites costly lawsuits.
Rather than argue on substantive policy issues, those who cannot enunciate their own party platform sufficient to muster a challenge to Republicans in Idaho give us Proposition 1, the so-called “open primaries initiative.” I cannot understand why the freedom of association of Republicans must be discarded in favor of the dilution of political parties. The proposed new Idaho Code section 34-118 states the “top four primary elections do not determine any party’s nominee and candidates who advance from a top four primary election to a general election are not considered nominees of any political party.” Therefore, why have party affiliations at all?
When “instant runoff voting” is defined in the new Idaho Code section 34-119, it is said to be “the method of casting and tabulating votes described in section 34-1218,” which is also a new section. The misleading part in section 34-119 is the sentence that states, “voters may rank candidates by order of preference, each ballot counts as a single vote for its highest-ranked active candidate,” but the candidate receiving the fewest votes is eliminated, and votes for that candidate are assigned upward “to each ballot’s next-highest ranked active candidate.” In short, any vote made after the first choice will be reassigned by the process of tabulation to the next least-favored candidate. Why would Idaho purposefully assign votes to the least favored candidate?"
By Art Macomber, Attorney.
Mr. Macomber ran for State Attorney General in 2022 after 16 years practicing law in Idaho.
Comments can be sent to art@artmacomber.com.
