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Spokane, Washington  Est. May 19, 1883

Court may get last vote on closing GOP primaries

BOISE – The stage is set for a legal clash between the state and the Idaho Republican Party over the fate of primary elections, Idaho officials and lawmakers said Friday.

If lawmakers don’t pass legislation this session to partially restrict primary elections, and state GOP leaders pursue a proposal to close their primaries to nonmembers, the tangle might go to the courts.

A recent opinion by the Idaho attorney general’s office said courts would rule in favor of the party on First Amendment grounds.

House Speaker Lawerence Denney, R-Midvale, said primary legislation is dead for this session and possibly the next.

The Idaho Republican Party’s Central Committee will consider a rule change this summer, said party activist and former state Sen. Rod Beck, who is pushing the move.

“There is a collision coming between the Republican Party’s policies and the Idaho statute,” said Keith Allred, a Harvard professor who heads The Common Interest, a nonpartisan Idaho citizens group. “If the Legislature doesn’t throw something out this session, that collision is coming.”

Beck, who drafted a resolution passed by the state GOP last summer in favor of closing its primaries, said the U.S. Supreme Court has clearly recognized parties’ rights. It’s time for the GOP to assert itself, he said.

“We need to make a decision as to whether we’re simply going to be a debating society with social functions, or are we going to be a political party?” Beck said. “The party is in the position to assert itself, and they have the legal basis to back it up.”

The party adopted Beck’s resolution after concerns that Democrats interfered with a recent six-way Republican primary in the 1st Congressional District. Idaho law currently allows voters to choose which party’s ballot to vote on on Election Day.

The House State Affairs Committee last month held off making a decision on House Bill 185, which requires citizens to register with a party to vote in primaries but gives parties the option to allow independents to participate.

Lawmakers held the GOP leadership-backed bill following concerns by Secretary of State Ben Ysursa and others about how Idaho’s more than 700,000 voters would select a party and about the bill’s effect on voter turnout.

Closed elections can increase partisanship and deter voters, Allred said. He has pushed an amendment to allow independent voters to freely participate in all primaries.

After meeting with Ysursa, sponsors of HB 185 agreed to a potential amendment allowing voters to choose their party based on what ballot they pick after the new system begins.

That’s a less costly proposal than reregistering all voters simultaneously, said bill co-sponsor Rep. Raúl Labrador, R-Eagle. But that amendment was never added to the bill.

Idaho’s open primary “would represent a severe burden on the associational rights of a party that desires to choose its nominee in a closed or semiclosed primary election,” Deputy Attorney General Mitchell Toryanski wrote in a March 1 opinion.

Toryanski based the opinion largely on a 2000 Supreme Court decision overturning California’s primary system and a recent federal court decision against Virginia’s open primary. “It’s a very basic constitutional right,” Allred said. “It sounds odd that party rules would trump state statute, but that’s probably the case.”

Labrador, an attorney, agreed with the attorney general’s opinion.

“If that happens, we will be sued and we will probably lose in court,” he said.

Primaries are just one aspect of “asserting the party’s role as a private institution that shouldn’t be regulated by the state,” Beck said.

Idaho Democrats already operate a closed primary. The Democratic National Committee will not accept primary results when nonparty members are allowed to vote, so state Democrats choose candidates through caucuses.

Empirical evidence suggests that modified-closed primaries that allow independents to vote produce the candidates that best represent their constituents, Allred said.

House Democrats have not considered that possibility, said House Assistant Minority Leader George Sayler, D-Coeur d’Alene. Idaho’s system works and hasn’t been challenged so far, he said.

Ysursa called primary elections “an issue in flux.”

“I think we’re going to see from the high court some more discussion on the legalities of state law versus party rule and how they conduct primaries,” he said.