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Some Idaho candidates’ eligibility in doubt even as voters head to polls

Idaho Secretary of State Lawerence Denney, shown in his office at the Idaho state Capitol on Friday, May 11, 2018. (Betsy Z. Russell / Idaho Press-Tribune)
Idaho Secretary of State Lawerence Denney, shown in his office at the Idaho state Capitol on Friday, May 11, 2018. (Betsy Z. Russell / Idaho Press-Tribune)

Conflicting rulings from two North Idaho judges in a single day, two candidates’ names blacked out on early ballots and then reinstated, and court appeals likely — that’s how a convoluted dispute involving who can run for the Idaho Legislature is playing out as Idahoans go to the polls for this year’s primary election.

At issue: Two former state lawmakers from North Idaho, former Reps. Kathy Sims, R-Coeur d’Alene, and Phil Hart, R-Athol, filed to run for the House this year from new districts, saying they’d moved. But just two weeks before the election, Idaho Secretary of State Lawerence Denney discovered that both hadn’t met the requirement to be registered voters in their new districts for a year before the November general election. So he ordered their names blacked out on the already-printed ballots.

Then, even as voters in those districts already were starting early voting, both went to court to challenge the ruling.

“One judge said no, and the other judge said yes,” Denney said. “One way or the other, it will be before the Supreme Court, I suspect.”

First District Judge Lansing Haynes ruled that Hart didn’t meet the residency requirement and booted him off the ballot. But just hours later, Haynes rescinded his ruling, replacing it with another saying that Hart had filed his appeal in the wrong county, so another judge in the correct county should be the one to rule on the merits of the case.

That was May 4, at the same time that another Coeur d’Alene judge, 1st District Judge Rich Christensen, was ruling that Sims should stay on the ballot.

Christensen differed with decades of Idaho court precedent and ruled that there’s a difference between the terms “elector” and “qualified elector” in the Idaho Constitution and concluded that Sims should stay on the ballot because she’d been a resident of her new district since she obtained a homeowner’s exemption from property taxes there in September — even though she didn’t register to vote there until Feb. 26.

“It seems to me that the lion’s share of the precedent cuts precisely the other way,” said McKay Cunningham, a law professor at Concordia University School of Law in Boise, “and you’ve got case law all the way back to the year 1900.”

Denney said he was left with just one ruling on the merits — favoring leaving Sims on the ballot — just a week-and-a-half before the election and no chance for the case to reach a final resolution on appeal before voters go to the polls.

“That’s why we put Phil Hart back on the ballot,” he said. “I said, ‘Let’s just make it uniform.’”

If both Hart and Sims win their primary races but then are later ruled ineligible to serve by the courts, their parties — in this case, the Republican Party — could name a replacement for them on the November ballot. If courts uphold their ballot eligibility, it could change the rules for all Idaho legislative candidates.

“It’s not an ideal situation, what’s going on,” said former longtime Idaho Secretary of State Ben Ysursa.

Cunningham said, “It doesn’t seem to honor the representational democratic system that we have. … I think that the entities that are most likely to be hurt by this whole mess are voters, obviously, and kind of the institution of representational democracy.”

The two candidates both filed notarized statements in March, when they filed for office, stating that they’d met the one-year requirement. And Denney didn’t check at the time.

“It’s a manual process, and typically we don’t check that out unless somebody brings it to our attention,” he told the Idaho Press-Tribune.

Denney said when the state upgrades its elections system — for which the Legislature appropriated $1.2 million over the coming year — “it will be digitally checked — it will be red-flagged.”

Ysursa said he’s not criticizing Denney.

“The Secretary of State’s role is to make sure everyone’s playing by the same rules,” he said. “Sometimes things get through the cracks.”

When he was in office, Ysursa said the office did try to check on the voter registration records of every candidate who filed.

“We did that as much as we could,” he said. But he noted that it couldn’t even do that until the 1990s, as there were no statewide voter registration lists before that — all the data was held by each of Idaho’s 44 counties.

Denney’s had turnover among his employees in the months leading up to the primary election, with two key employees leaving — elections supervisor Betsie Kimbrough, who resigned two months ago, and another employee who handled campaign finance reporting who left just a week ago.

“We are getting by with temps right now,” Denney said Friday. “We’re all busy. But it’s hard to train anybody in a short period of time.”

Since at least 1974, the Idaho Secretary of State’s office has uniformly rejected candidate filings from legislative hopefuls who hadn’t been registered in their district for a year prior to the general election. Just between 2006 and 2014, 12 candidates were disqualified, including six Republicans, four Democrats, one Constitution Party candidate and one independent.

However, Ysursa said, “Courts can certainly change their minds on what the current state of our law is.”