Amends and adds to existing law to provide for a presidential primary election.

LEGISLATURE OF THE STATE OF IDAHO Sixty-eighth Legislature Second Regular Session - 2026 IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 638 BY STATE AFFAIRS COMMITTEE AN ACT1 RELATING TO ELECTIONS; AMENDING SECTION 34-102, IDAHO CODE, TO REVISE A DEF-2 INITION, TO DEFINE A TERM, AND TO MAKE TECHNICAL CORRECTIONS; AMENDING3 SECTION 34-106, IDAHO CODE, TO PROVIDE A PRESIDENTIAL PRIMARY DATE;4 AMENDING SECTION 34-411A, IDAHO CODE, TO REVISE PROVISIONS REGARDING5 CHANGING PARTY AFFILIATION FOR PRIMARY ELECTIONS; AMENDING SECTION6 34-601, IDAHO CODE, TO PROVIDE A PRESIDENTIAL PRIMARY DATE; AMENDING7 SECTION 34-713, IDAHO CODE, TO REVISE PROVISIONS REGARDING THE PREPA-8 RATION OF PRESIDENTIAL PRIMARY BALLOTS; AMENDING CHAPTER 7, TITLE 34,9 IDAHO CODE, BY THE ADDITION OF A NEW SECTION 34-731, IDAHO CODE, TO ES-10 TABLISH PROVISIONS REGARDING PRESIDENTIAL PRIMARIES; AMENDING CHAPTER11 7, TITLE 34, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 34-732, IDAHO12 CODE, TO PROVIDE REQUIREMENTS FOR PRESIDENTIAL PRIMARY CANDIDATES;13 AMENDING CHAPTER 7, TITLE 34, IDAHO CODE, BY THE ADDITION OF A NEW SEC-14 TION 34-733, IDAHO CODE, TO PROVIDE FOR THE REMOVAL OF CANDIDATES FROM15 PRESIDENTIAL PRIMARY BALLOTS; AMENDING CHAPTER 7, TITLE 34, IDAHO CODE,16 BY THE ADDITION OF A NEW SECTION 34-734, IDAHO CODE, TO PROVIDE FOR17 VOTING IN A PRESIDENTIAL PRIMARY; AMENDING CHAPTER 7, TITLE 34, IDAHO18 CODE, BY THE ADDITION OF A NEW SECTION 34-735, IDAHO CODE, TO PROVIDE19 FOR PRESIDENTIAL PRIMARY RESULTS; AMENDING CHAPTER 7, TITLE 34, IDAHO20 CODE, BY THE ADDITION OF A NEW SECTION 34-736, IDAHO CODE, TO PROVIDE FOR21 DELEGATES TO A NATIONAL CONVENTION; AMENDING CHAPTER 7, TITLE 34, IDAHO22 CODE, BY THE ADDITION OF A NEW SECTION 34-737, IDAHO CODE, TO PROVIDE23 FOR THE CONDUCT OF A PRESIDENTIAL PRIMARY ELECTION; AMENDING CHAPTER24 7, TITLE 34, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 34-738, IDAHO25 CODE, TO PROVIDE FOR THE COSTS OF A PRESIDENTIAL PRIMARY; AMENDING SEC-26 TION 34-904A, IDAHO CODE, TO REVISE PROVISIONS REGARDING ELIGIBILITY27 TO VOTE IN PRIMARY ELECTIONS; AMENDING SECTION 34-1203A, IDAHO CODE, TO28 REVISE PROVISIONS REGARDING POSTELECTION AUDITS OF SELECTED BALLOTS;29 AND DECLARING AN EMERGENCY AND PROVIDING AN EFFECTIVE DATE.30

Be It Enacted by the Legislature of the State of Idaho:31

SECTION 1. That Section 34-102, Idaho Code, be, and the same is hereby32 amended to read as follows:33 34-102. "PRIMARY ELECTION" DEFINED -- PURPOSES. (1) "Primary elec-34 tion" means an election held for the purpose of nominating persons as35 candidates of political parties for election to offices, and for the purpose36 of electing persons as members of the controlling committees of political37 parties. Primary elections, with the exception of presidential primaries,38 shall be held on the third Tuesday of May in each even-numbered year.39 (2) For the purpose of this title, "presidential primary" means an40 election held for the purpose of allowing voters to express their choice of41 candidate for nomination by a political party for president of the United42

2 States. A presidential primary shall be held on the first Tuesday in March in1 each presidential election year.2

SECTION 2. That Section 34-106, Idaho Code, be, and the same is hereby3 amended to read as follows:4 34-106. LIMITATION ON ELECTIONS. On and after January 1, 2011,5 notwithstanding any other provisions of the law to the contrary, there shall6 be no more than two (2) elections conducted in any county in any calendar7 year, except as provided in this section or section 34-220, Idaho Code, and8 except that elections to fill vacancies in the United States house of repre-9 sentatives shall be held as provided in the governor's proclamation.10 (1) The dates on which elections may be conducted are:11 (a) The third Tuesday in May of each year; and12 (b) The Tuesday following the first Monday in November of each year.13 (c) In addition to the elections specified in paragraphs (a) and (b) of14 this subsection and subsection (7) of this section, an emergency elec-15 tion may be called upon motion of the governing board of a political sub-16 division. An emergency exists when there is a great public calamity,17 such as an extraordinary fire, flood, storm, epidemic, or other disas-18 ter, or when it is necessary to do emergency work to prepare for national19 or local defense or to safeguard life, health or property.20 (d) In addition to the elections specified elsewhere in this section, a21 presidential primary shall be held on the first Tuesday in March in each22 presidential election year.23 (2) Candidates for office elected in May shall take office on the date24 specified in the certificate of election but not more than sixty (60) days25 following the election.26 (3) Candidates for office elected in November shall take office as pro-27 vided in the constitution or on January 1 next succeeding the November elec-28 tion.29 (4) The governing board of each political subdivision subject to the30 provisions of this section that, prior to January 1, 2011, conducted an elec-31 tion for members of that governing board on a date other than a date permit-32 ted in subsection (1) of this section shall establish as the election date33 for that political subdivision the date authorized in subsection (1) of this34 section that falls nearest the date on which elections were previously con-35 ducted, unless another date is established by law.36 (5) The secretary of state is authorized to provide such assistance as37 necessary and to prescribe any needed rules or interpretations for the con-38 duct of an election authorized under the provisions of this section.39 (6) Water districts governed by chapter 6, title 42, Idaho Code, are ex-40 empt from the provisions of this section.41 (7) Community colleges governed by chapter 21, title 33, Idaho Code,42 and school districts are subject to the limitations specified in subsection43 (1) of this section.44 (8) A city initiative or referendum election shall be held on the Tues-45 day following the first Monday in November of odd-numbered years. A county46 initiative or referendum election or a bond, levy or other ballot question47 election conducted by any political subdivision shall be held on the nearest48 date authorized in subsection (1) of this section as long as the ballot lan-49

3 guage for any question to be placed on the ballot is submitted to the county1 clerk no later than 5:00 p.m. on the tenth Friday before the election.2 (9) Recall elections may be held on any of the dates authorized in sub-3 section (1) of this section as long as the recall petition is certified no4 later than the tenth Friday before the next scheduled election.5 (10) Irrigation districts governed by title 43, Idaho Code, are subject6 to the limitations specified in subsection (1) of this section, except that7 irrigation districts may also hold an election on the first Tuesday in Febru-8 ary of each year and on the first Tuesday in August of each year on questions9 required to be voted on by title 43, Idaho Code.10

SECTION 3. That Section 34-411A, Idaho Code, be, and the same is hereby11 amended to read as follows:12 34-411A. PRIMARY ELECTIONS -- CHANGING PARTY AFFILIATION -- UNAFFILI-13 ATED ELECTORS. (1) For a primary election, including a presidential primary14 election, an elector may change such elector's political party affiliation15 or become unaffiliated by filing a signed form with the county clerk no later16 than the last day a candidate may file for partisan political office prior17 to such primary election, as provided for in section 34-704, Idaho Code, and18 no later than the last day a candidate may file for the presidential pri-19 mary prior to such presidential primary election, as provided for in section20 34-732, Idaho Code. An unaffiliated elector may affiliate with the party21 of the elector's choice by filing a signed form up to and including election22 day. The application form described in section 34-1002, Idaho Code, shall23 also be used for this purpose.24 (2) For a primary election, an unaffiliated elector may select a po-25 litical party affiliation only prior to voting in the primary election. An26 elector may make such selection on or before election day by declaring such27 political party affiliation to the poll worker or other appropriate election28 personnel. The poll worker or other appropriate election personnel shall29 then record in the poll book the elector's choice. After the primary elec-30 tion, the county clerk shall record the party affiliation so recorded in the31 poll book as part of such elector's record within the voter registration sys-32 tem as provided for in section 34-437A, Idaho Code.33

SECTION 4. That Section 34-601, Idaho Code, be, and the same is hereby34 amended to read as follows:35 34-601. DATES ON WHICH ELECTIONS SHALL BE HELD. Elections shall be36 held in this state on the following dates or times:37 (1) A primary election shall be held on the third Tuesday in May, 2012,38 and every two (2) years thereafter on the above-mentioned Tuesday.39 (2) A general election shall be held on the first Tuesday after the40 first Monday of November, 2012, and every two (2) years thereafter on the41 above-mentioned Tuesday.42 (3) Special state elections shall be held on the dates ordered by the43 governor's proclamation, or as otherwise provided by law.44 (4) A presidential primary shall be held on the first Tuesday in March45 in each presidential election year.46

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SECTION 5. That Section 34-713, Idaho Code, be, and the same is hereby1 amended to read as follows:2 34-713. PREPARATION OF PRIMARY BALLOTS. (1) Upon receipt of the sample3 ballot and instructions from the secretary of state, each county clerk shall4 print and prepare the official primary ballots for the forthcoming election.5 The printing of the ballots shall be a county expense and paid out of the6 county treasury, except presidential primary ballots, which shall be paid7 for as provided in section 34-738, Idaho Code.8 (2) Each county clerk shall cause to be published on the earliest date9 possible in May the names of all the political party candidates who shall10 appear on the primary or presidential primary ballot. The names shall be11 listed alphabetically under each particular office title.12

SECTION 6. That Chapter 7, Title 34, Idaho Code, be, and the same is13 hereby amended by the addition thereto of a NEW SECTION, to be known and des-14 ignated as Section 34-731, Idaho Code, and to read as follows:15 34-731. PRESIDENTIAL PRIMARY. (1) In years in which a president of the16 United States is to be nominated and elected, a presidential primary shall be17 held at which voters may express their choice of candidate for nomination by18 a political party for president. The presidential primary shall be held on19 the first Tuesday in March in each presidential election year.20 (2) Participation in a presidential primary by a political party shall21 be optional, and nothing in this chapter shall be construed as mandating a22 party's participation in a presidential primary. Any party that intends to23 participate in a presidential primary shall notify the secretary of state's24 office no later than the last Tuesday in November prior to the presidential25 primary.26

SECTION 7. That Chapter 7, Title 34, Idaho Code, be, and the same is27 hereby amended by the addition thereto of a NEW SECTION, to be known and des-28 ignated as Section 34-732, Idaho Code, and to read as follows:29 34-732. PRESIDENTIAL PRIMARY CANDIDATES. The name of any candidate30 for a political party nomination for president of the United States shall31 be printed on the ballots only if the candidate files with the secretary of32 state a declaration of candidacy accompanied by a fifty-thousand-dollar33 ($50,000) filing fee no less than ninety (90) days prior to the presidential34 primary.35

SECTION 8. That Chapter 7, Title 34, Idaho Code, be, and the same is36 hereby amended by the addition thereto of a NEW SECTION, to be known and des-37 ignated as Section 34-733, Idaho Code, and to read as follows:38 34-733. PRESIDENTIAL PRIMARY -- REMOVAL FROM BALLOT. In the event the39 secretary of state is informed of a candidate's death, incapacity, or with-40 drawal from candidacy, the secretary of state may remove the name of such41 candidate from the ballot; provided, however, that no candidate's name shall42 be removed within the forty-five (45) days preceding the presidential pri-43 mary.44

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SECTION 9. That Chapter 7, Title 34, Idaho Code, be, and the same is1 hereby amended by the addition thereto of a NEW SECTION, to be known and des-2 ignated as Section 34-734, Idaho Code, and to read as follows:3 34-734. PRESIDENTIAL PRIMARY -- VOTING. At a presidential primary,4 qualified electors may vote for one (1) candidate from among the candidates5 of one (1) political party only in a manner consistent with the provisions of6 section 34-904A, Idaho Code.7

SECTION 10. That Chapter 7, Title 34, Idaho Code, be, and the same is8 hereby amended by the addition thereto of a NEW SECTION, to be known and des-9 ignated as Section 34-735, Idaho Code, and to read as follows:10 34-735. PRESIDENTIAL PRIMARY -- RESULTS. Upon completion of the state11 canvass for the presidential primary, the secretary of state shall certify12 to the state chair of each political party participating in the presidential13 primary the number of votes received by each candidate of that party. A win-14 ner shall be declared as prescribed by national and state party rules.15

SECTION 11. That Chapter 7, Title 34, Idaho Code, be, and the same is16 hereby amended by the addition thereto of a NEW SECTION, to be known and des-17 ignated as Section 34-736, Idaho Code, and to read as follows:18 34-736. DELEGATES TO THE NATIONAL CONVENTION. Upon receiving the re-19 sults of the presidential primary pursuant to section 34-735, Idaho Code,20 each party participating in the presidential primary shall select, accord-21 ing to national and state party rules, as many delegates and alternates to22 the national party convention as are allotted to it by the national committee23 of that party.24

SECTION 12. That Chapter 7, Title 34, Idaho Code, be, and the same is25 hereby amended by the addition thereto of a NEW SECTION, to be known and des-26 ignated as Section 34-737, Idaho Code, and to read as follows:27 34-737. PRESIDENTIAL PRIMARY -- CONDUCT OF ELECTION. Insofar as prac-28 ticable, and where the provisions of this chapter do not specifically indi-29 cate otherwise, the presidential primary shall be conducted and canvassed in30 the manner provided by law for the conduct and canvassing of state primary31 elections.32

SECTION 13. That Chapter 7, Title 34, Idaho Code, be, and the same is33 hereby amended by the addition thereto of a NEW SECTION, to be known and des-34 ignated as Section 34-738, Idaho Code, and to read as follows:35 34-738. PRESIDENTIAL PRIMARY COSTS. (1) Whenever a presidential pri-36 mary is held as provided by this chapter, the state of Idaho shall assume all37 costs related to the presidential primary, including publication of legal38 notice and ballot preparation. The county clerk shall determine the costs39 and file a certified claim, which shall be examined, allowed, and paid in the40 same manner as other claims against the state.41

6 (2) The costs of any other election held simultaneous to the presiden-1 tial primary shall be covered in the manner elsewhere prescribed by law.2

SECTION 14. That Section 34-904A, Idaho Code, be, and the same is hereby3 amended to read as follows:4 34-904A. ELIGIBILITY TO VOTE IN PRIMARY ELECTIONS. (1) Except as pro-5 vided in subsection (2) of this section, an elector who has designated a6 party affiliation shall be allowed to vote only in the primary or presiden-7 tial primary election of the political party for which such an elector is so8 registered.9 (2) A political party qualified to participate in elections pursuant to10 section 34-501, Idaho Code, may, no later than the last Tuesday in the Novem-11 ber prior to a primary or presidential primary election, notify the secre-12 tary of state in writing that the political party elects to allow, in addi-13 tion to those electors who have registered with that political party, any of14 the following to vote in such party's primary or presidential primary elec-15 tion:16 (a) Electors designated as unaffiliated;17 (b) Electors registered with a different political party qualified to18 participate in elections pursuant to section 34-501, Idaho Code. In the19 event a state chairman of a political party elects to allow electors to20 vote in that party's primary or presidential primary election pursuant21 to this paragraph, the state chairman shall identify which political22 parties' registrants are allowed to vote in such primary or presiden-23 tial primary election.24 (3) In the event that more than one (1) political party allows unaf-25 filiated electors to vote in their party's primary or presidential primary26 election, an unaffiliated elector shall designate which political party's27 primary or presidential primary election the elector chooses to vote in by28 declaring such designation to the poll worker or other appropriate election29 personnel, who shall then record in the poll book the elector's choice. The30 county clerk shall record such choice as part of the elector's voting history31 within the voter registration system as provided for in section 34-437A,32 Idaho Code.33 (4) In the event no more than one (1) political party allows unaffili-34 ated electors to vote in their party's primary or presidential primary elec-35 tion, an "unaffiliated" elector may designate that political party's pri-36 mary or presidential primary election as the election the elector chooses to37 vote in by declaring such designation to the poll worker or other appropri-38 ate election personnel, who shall then record in the poll book the elector's39 choice. The county clerk shall record such choice as part of the elector's40 voting history within the voter registration system as provided for in sec-41 tion 34-437A, Idaho Code.42 (5) An unaffiliated elector having declared such designation as pro-43 vided for in subsection (3) or (4) of this section shall not be permitted to44 vote in the primary or presidential primary election of any other party held45 on that primary or presidential primary election date.46 (6) If an unaffiliated elector does not declare a choice of for a polit-47 ical party's primary or presidential primary election ballot, the elector48 shall not be permitted to vote in any political party's primary or presiden-49

7 tial primary election but shall receive a nonpartisan ballot when such a bal-1 lot is available.2 (7) In the event that one (1) or more political parties allow electors3 affiliated with a different political party to vote in their primary or pres-4 idential primary election pursuant to this section, an elector affiliated5 with a different political party shall declare to the poll worker or other6 appropriate election personnel in which primary or presidential primary7 election ballot such elector wishes to vote. The county clerk shall record8 such choice as part of the elector's voting history within the voter regis-9 tration system as provided for in section 34-437A, Idaho Code.10 (8) Provided that all other provisions of this act are complied with,11 nothing in this section shall be construed to prohibit an elector designated12 as unaffiliated from voting in the primary or presidential primary election13 of a different party held in subsequent years. Notwithstanding any other14 provision of this act, if a political party allows unaffiliated electors to15 vote in that political party's primary or presidential primary election pur-16 suant to this section, a vote by an unaffiliated elector in such primary or17 presidential primary election shall not change or affect the elector's unaf-18 filiated designation.19

SECTION 15. That Section 34-1203A, Idaho Code, be, and the same is20 hereby amended to read as follows:21 34-1203A. POSTELECTION AUDIT OF SELECTED BALLOTS.22 (1)(a) After the completion of all county canvasses for any primary23 or general election, including any presidential primary election, the24 secretary of state shall identify and order a postelection audit of cer-25 tain paper ballots cast in any election, shall immediately post to the26 website of the office of the secretary of state a list of the elections,27 counties, and precincts selected for audit, and shall immediately no-28 tify each affected county clerk and county sheriff of the same. Upon29 receiving such notification, the county sheriff shall immediately30 impound and take into custody the affected ballots pursuant to the pro-31 cedures in chapter 23, title 34, Idaho Code. Upon completion of the32 postelection audit, the ballots shall be resealed and returned to the33 custody of the county clerk or, in the event that the ballots are subject34 to a recount pursuant to chapter 23, title 34, Idaho Code, to the county35 sheriff. The postelection audit shall include, at a minimum, a hand re-36 count of the ballots subject to the audit and a comparison to the results37 reported by the county for any precincts, days, batches, legislative38 districts, and tabulation machines selected for audit.39 (b) A postelection audit authorized pursuant to paragraph (a) of this40 subsection may be ordered for:41 (i) Any or all federal elections held in Idaho;42 (ii) The election for governor;43 (iii) The statewide office election having the narrowest percent-44 age margin of votes;45 (iv) The statewide ballot question election having the narrowest46 percentage margin of votes; and47 (v) One (1) legislative office election within the county.48

8 (c) The precincts selected for audit pursuant to paragraph (a) of this1 subsection shall:2 (i) Be selected by lot by the secretary of state without the use of3 a computer at an open public meeting governed by the provisions of4 chapter 2, title 74, Idaho Code; and5 (ii) Not exceed five percent (5%) of the precincts in the county or6 one (1) precinct, whichever is greater. Provided, however, that7 multiple precincts may be selected in any county if the number of8 ballots from the precincts so selected is less than two thousand9 one hundred (2,100).10 (d) The secretary of state, in lieu of auditing the early or absentee11 ballots from any precincts selected for postelection audit, may se-12 lect days, batches, legislative districts, and tabulation machines of13 early or absentee ballots for audit until the number of ballots selected14 equals or exceeds the number of early or absentee ballots that were15 cast from the precincts selected for postelection audit. Such days,16 batches, legislative districts, and tabulation machines shall be se-17 lected under the same requirements by which precincts were selected.18 The provisions of this paragraph apply only to a county that:19 (i) Does not organize the storage of its early or absentee ballots20 by precinct;21 (ii) Organizes the storage of such ballots by day, batch, legisla-22 tive district, or tabulation machine; and23 (iii) Publicly reports the election results for early or absen-24 tee ballots by day, batch, legislative district, or tabulation ma-25 chine on the county's website prior to the secretary of state's se-26 lection of precincts to be audited.27 (2) The secretary of state shall conduct, and the county clerks shall28 facilitate, any postelection audit ordered pursuant to subsection (1) of29 this section. Such an audit shall be open to attendance by news media person-30 nel. By directive issued at least sixty (60) days prior to the election, the31 secretary of state shall determine the procedures by which the postelection32 audit is to be conducted. Such procedures shall be developed in consultation33 with county clerks and shall include provisions allowing each interested34 candidate and political party, and each political committee that publicly35 reported expending money on a ballot question for which the results will be36 audited, to appoint a designated observer. Within the time specified in the37 directive, the secretary of state shall report the results of any postelec-38 tion audits on the website of the office of the secretary of state and to the39 county clerk of each county in which paper ballots were audited.40 (3) The secretary of state may order additional postelection audits,41 without regard to the election or precinct limitations provided in subsec-42 tion (1) of this section, if he determines that such action is warranted by43 the findings of the audits ordered pursuant to subsection (1) of this sec-44 tion. The secretary of state shall limit such orders for additional post-45 election audits to the types of problems identified by the audits performed46 pursuant to subsection (1) of this section.47 (4) The office of the secretary of state shall pay for the cost of any48 postelection audits conducted pursuant to this section, including reimburs-49 ing county clerks for any costs associated with facilitating such audits.50

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SECTION 16. An emergency existing therefor, which emergency is hereby1 declared to exist, this act shall be in full force and effect on and after2 July 1, 2026.3