U.S. Supreme Court rules against ‘independent state legislature’ theory

Supporters of Idaho Open Primaries Initiative say AG Labrador ‘leaned’ on theory to oppose ballot measure

By Zach Hagadone Reader Staff

Organizers behind the effort to put the Open Primaries Initiative on the 2024 ballot in Idaho applauded the decision June 27 by the U.S. Supreme Court to invalidate the so-called independent state legislature theory, which assigns sweeping powers to lawmakers in governing federal elections.

Reclaim Idaho co-founder Luke Mayville, whose organization is part of the coalition of groups behind Idahoans for Open Primaries, wrote in a June 27 statement that Idaho Attorney General Raúl Labrador has “leaned” on the legal theory — which was used during and after the 2020 presidential election to cast doubt on whether state courts could review or strike down election laws put in place by legislatures — to bolster his critiques of the Open Primaries Initiative.

“Today, the United States Supreme Court rejected Labrador’s theory by a vote of 6-3,” Mayville stated. “But make no mistake, this is not the last we’ll hear from the attorney general. In the months ahead, he will continue to attack the Open Primaries Initiative with baseless arguments, and we must be prepared to fight back.”

Labrador in his analysis of the initiative in early June, wrote, “the times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof,” which according to Boise-based KTVB “raises a question about citizen initiative impacts on federal elections.”

In the June 27 ruling, Chief Justice John Roberts argued that the Constitution does not protect legislators’ actions from state courts; rather, legislative authority is checked by state and federal constitutions, as well as statute.

Justices Brett Kavanaugh, Amy Coney Barrett, Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson joined Roberts in the majority. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch dissented.

The Idaho Open Primaries Initiative takes aim at the 2011 state law allowing political parties to choose to hold closed primaries, in which voters must be affiliated with the given party in order to participate. The law came about after the Idaho Republican Party sued the state, and the state GOP has held closed primaries since 2012. The Libertarian and Constitution parties both held closed primaries as recently as 2022, while the Idaho Democratic Party continues to hold open primaries, in which anyone can vote regardless of party affiliation.

Critics of the closed primary system contend that it narrows the franchise and incentivizes candidates to cater to the most extreme ideological leanings of their partisan bases.

As Lewiston Tribune Opinion Editor Marty Trillhaase wrote in May, “Ever wonder how characters from the political fringe — whether it’s Janice McGeachin’s win as lieutenant governor in 2018 or Raúl Labrador’s election as attorney general last year — hold office?

“Blame the closed Republican primary election.

“Annoyed that the political class can act with impunity — whether it’s trying to erase your ballot initiative rights or supporting the agenda of the Idaho Freedom Foundation while ignoring their own constituents?

“Blame the closed Republican primary election for that, too.

“The fact is you’re on the losing side of a rigged game.”

The Open Primaries Initiative would replace the closed primary with a “non-partisan primary system” in which voters of all party affiliations — or unaffiliated — would be empowered to vote for their top four candidates to advance to the general election.

In the general election, the winning candidate would be selected based on instant runoff voting, otherwise known as “rankedchoice” voting, in which candidates are eliminated from the race until only one receives more than 50% of the vote.

Idahoans for Open Primaries states the initiative “will give Idahoans more freedom and better leadership.” The coalition behind the effort includes Reclaim Idaho, the Idaho Task Force for Veterans for Political Innovation, North Idaho Women, Represent US Hope and the Hope Coalition.

In addition to opposing the initiative on the grounds that only state legislatures can reform laws related to federal elections — an argument that the Supreme Court has now deemed invalid — Labrador also argued that it ran afoul of a rule adopted in 2020 that initiatives must deal with a single subject.

According to Labrador’s analysis, the open primary system eliminating party primaries and the institution of ranked-choice voting in the general election represented “separate subjects and neither one depends on the other.”

Former-Idaho Supreme Court Chief Justice and former-Idaho Attorney General Jim Jones pushed back at that assessment, stating that the initiative deals with one issue: elections. Further, Jones called Labrador’s analysis “a political hatchet job” in an op-ed published in early-June by news media around the state.

“Labrador takes the absurd position that the right of political parties to control who can vote in primary elections takes priority over the right of voters to vote for the candidates of their choice in those elections,” Jones wrote. “The Idaho Constitution does not grant political parties the right to control who votes in our elections, but our Supreme Court has held the right of citizens to elect their leaders is an inviolable constitutional right.”

The initiative has been filed with the Idaho Secretary of State’s Office, where it is awaiting final approval to appear on the 2024 ballot.