Comparing the Idaho legislative session this year with those I have observed over the last half century, this was decidedly the worst. Legislators variously proposed or passed unconstitutional bills, tried to make the initiative and referendum unworkable, refused to take the COVID-19 crisis seriously, shot down funding bills for no valid reason, tried to solve non-existent problems like critical race theory and generally conducted themselves like irresponsible nitwits. It does not have to be this way.
With the advent of the closed Republican primary, legislators have become more extreme. Idaho is one of the reddest states in the country. In most legislative districts, the winner of the Republican primary is the person who will prevail in the general election. Extremists just have to marshal their forces in the primary to keep electing those who continually move farther to the right on the political spectrum.
The Republican Party decided to close its primary to all but declared Republicans in 2007 in order to purge more moderate, pragmatic candidates from its ranks, and that is just what has happened. When Idaho’s open primary, where any voter could request and vote the primary ticket of either party, was challenged in federal court by the Republicans, the judge quoted expert testimony that closing the primary would have the “very real and immediate effect of ... producing more ideologically extreme candidates.”
The federal judge, believing that the First Amendment to the U.S. Constitution required it, ruled in March 2011 that the Republicans could close their primary. And, sure enough, each Legislature since that time has become more dysfunctional and untethered from reality.
So, how can we fix it? A close examination of the law indicates that our federal court got it wrong. A 2015 federal court ruling in Montana turned away a Republican challenge to that state’s open primary based on its review of decisions by the U.S. Supreme Court. I believe the Montana ruling is correct on the law. Now that the Idaho Supreme Court has restored the right of the people to initiate legislation, Idaho voters could pursue an initiative to restore the open primary system that served the Idaho so well for so many years.
Another effective way to overcome the extremist-producing closed primary would be to adopt some form of what has been called a “jungle primary.” Washington voters passed an initiative in 2004 calling for candidates to be listed on the ballot with a self-described party preference. Voters could vote for any of the candidates for that office and the top two candidates, regardless of party, would advance to the general election ballot. The U.S. Supreme Court ruled this plan to be valid in 2008.
Another variation was approved by Alaska voters last year. Their initiated legislation provides for all candidates, regardless of party, to participate on a single primary ballot. The top 4 vote-getters move to the general election ballot for ranked-choice selection—the candidate with the fewest first-choice votes is eliminated and voters who put that candidate at the top of their list have their votes reallocated to their second choices. The process continues until one candidate gets more than 50% of the vote. This plan will likely be the subject of an initiative drive in Idaho in the next couple of years, and I have committed to supporting it.
A group of veterans—Veterans for Political Innovation — has proposed a similar plan, which has the five top vote-getters moving to the general election for ranked-choice selection. That initiative, also, is worthy of support to fix our broken primary system.
Any of these fixes would dramatically improve our electoral system, allowing voters to winnow out the worst candidates in the primary election and put the best candidates into important offices. Each of these alternatives would likely have eliminated Lt. Governor Janice McGeachin from the last general election, and they would make it impossible for Priscilla Giddings to advance beyond the primary next year.
Jim Jones is a Vietnam combat veteran who served eight years as Idaho Attorney General (1983-1991) and 12 years as Justice of the Idaho Supreme Court (2005-2017). He is currently a regular contributor to The Hill online news.