Judge to decide if AG will pay attorney fees

After dismissing Attorney General Raúl Labrador’s legal effort to block a failed election reform ballot initiative, an Idaho judge is weighing whether Labrador’s office should pay attorney fees for the other side’s legal case.

Attorneys for the Idaho Office of Attorney General and Idahoans for Open Primaries argued their cases to Idaho 4th District Judge Patrick Miller in court Thursday. The judge is expected to issue a decision at a later date.

Much of the arguments in court revolved around whether Labrador had a reasonable basis to pursue legal challenges that sought to block the initiative, Proposition 1, from 2024 general election ballots in Idaho.

If it had passed, the initiative — widely known as the open primaries initiative — would’ve eliminated closed, partisan primary elections in Idaho. The new election structure proposed would have sent the top four primary candidates to a general election where voters could rank candidates in order of preference, through what’s known as ranked-choice voting or instant-runoff voting.

Idaho voters widely rejected the ballot initiative, Proposition 1, in the Nov. 5 election, with over 69% of votes against it, according to unofficial election results.

In his legal challenge, Labrador argued initiative organizers misled some Idaho voters by portraying the initiative as a proposed open primary law when it actually sought broader election reforms.

In court Thursday, Michael Zarian, deputy solicitor general at the Idaho Office of Attorney General, maintained Labrador’s challenge was reasonable.

“The attorney general still believes that his positions are correct,” Zarian told the judge Thursday. He said the attorney general’s office didn’t appeal the case to avoid interrupting the election.

“But at a minimum, we believe that the court should be able to see these were at least reasonable positions that the attorney general took in bringing this case,” Zarian said.

Idahoans for Open Primaries attorney Deborah Furgeson cast Labrador’s challenge as unreasonable, arguing that the attorney general sought to civilly enforce a criminal law that had “never been enforced in this way.”

And she claimed Labrador’s challenge relied on a flawed interpretation of a previous Idaho Supreme Court ruling, reached in 2023 in litigation over ballot titles for the initiative. The decision said the most accurate term for the initiative proposed primary system “is a top four primary.”

“In no way was it establishing a gag order about how the initiative could be spoken about,” Freguson said in court.

After hearing oral arguments, Judge Miller said he’d take the case under advisement.

“I believe I was correct in the decision. I believe there will be a constitutional problem if the statute were interpreted the way the attorney general wants to interpret it,” Miller said “… On the other hand, the clarity of the facts here in terms of what the (Idaho) Supreme Court has said and what they labeled it is pretty distinct. And so it does create a little bit of an issue.”

“I don’t mind making decisions about who’s right and who’s wrong,” Miller continued. “I just hate saying that, you know, ‘You’re so wrong, you’re stupid.’ … But I might. So, that’s my view right now. I’ll try to make the best decision I can.”

Kyle Pfannenstiel is a reporter for the Idaho Capital Sun, covering health care and state politics. He previously reported for the Post Register/Report for America, Idaho Education News and the Idaho Press. Kyle is a military brat who calls Idaho home. He has a bachelor’s degree in journalism and political science from University of Idaho.