Idaho Republicans Again Challenge Open Primary Law

UPDATE: Here is the complaint in Idaho Republican Party v. Ysursa.

In an open primary, a party's primary ballot is available to any voter who wants it. There are two types of open primaries: Mississippi is one of the 13 states with "open primary, public record," meaning that each primary voter's choice of party is publicly recorded. Idaho, in contrast, is one of the eight states with "open primary, private choice": each primary voter picks a party in secret, and no record is made of this choice.

Last year 71 Idaho Republican Party activists challenged their state-mandated open primary, but a U. S. district judge dismissed the lawsuit on the ground that the activists lacked standing. The judge said that such a suit must be filed by the party itself.

In 2006 the Idaho Republican Convention first passed a resolution calling for closed GOP primaries. In January 2008, the state central committee-- the party's governing body-- again approved a resolution favoring "members only" Republican primaries. The resolution said that an effort should be made to effect this change in the 2008 session of the legislature; failing that, the party should bring a new lawsuit against the open primary.

The recently-ended session of the heavily-Republican Idaho legislature failed to pass legislation modifying the primary election law. The Senate did pass a bill, 20-15, to switch to "open primary, public record," but the House refused to consider it. The Republican governor opposes changing the primary setup, as the state GOP chairman also steadfastly has. The chairman is up for re-election at the state convention in June, and he may have a contest from former state Sen. Rod Beck, who has spearheaded the efforts to change the primary election law.

Late Friday, the Republican Party filed a new federal lawsuit against the state-mandated open primary. The Idaho GOP will be able to cite U. S. District Judge Allen Pepper's 2007 ruling that Mississippi's open primary law is unconstitutional. If the 5th U. S. Circuit Court of Appeals in New Orleans agrees with Pepper, the Idaho Republicans will also be able to cite that decision. Mississippi Democratic Party v. Barbour

The Idaho GOP can cite the 4th U. S. Circuit Court of Appeals as well, which held in the suit brought by a unit of the Virginia Republican Party that there is a circumstance in which the party may close its primary to non-members. Miller v. Cunningham

Ben Ysursa, Idaho's Republican secretary of state, will assist the attorney general in defending the 36-year-old open primary law against the lawsuit. Ysursa was quoted as saying that the state has the right to control publicly financed primaries. His statement flies in the face of the Mississippi and Virginia precedents as well as the 2000 U. S. Supreme Court precedent in California Democratic Party v. Jones.

The legal assault on Idaho's open primary law is being led by the conservatives who dominate the Republican Party. There is talk that, if the suit succeeds, the more-moderate Republicans may break away and start a new party.