Traditional values, societal change: Young Idaho Republicans navigate their place in the party

By Melissa Davlin, Idaho Reports

 

On Friday afternoon, Russ Fulcher, Republican nominee for Congressional District 1, addressed conservatives gathered from around the state at the Idaho Republican Party State Convention.

Among his two sets of grandparents, one side was Republican, while the others were Democrats. Still, they agreed on most issues, Fulcher told the crowd.

That wouldn’t be the case today, he continued. While the Republican party has remained true to its small government principles, “let’s look what happened on the other side,” he said. Arguments on economic issues and open borders would be making his grandparents “turn in their graves.”

While Democrats both in-state and nationwide champion new leadership, fresh faces and progress, Idaho Republicans spent time at their convention celebrating their unchanging values.

All the while, the Republican Party is trying to navigate how to interface their core beliefs with public policy.  Meanwhile, some young conservatives are wondering if they have a place in the GOP’s present, and when they’ll be welcome to be involved in its future.

 

Looking for a welcome mat

A few hours earlier before Fulcher’s speech, Dom Gelsomino sat in the Holt Arena’s stadium seating, quietly discussing his plans to challenge a platform proposal opposing same sex marriage during a Saturday morning floor session.

“I will be arguing that government has no place in marriage whatsoever,” said

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Dom Gelsomino, 25, tried to persuade his fellow Idaho Republicans to support marriage equality at the party’s state convention on Saturday. Melissa Davlin/Idaho Reports

Gelsomino, a 25-year-old former legislative candidate from Boise. He pointed to then-candidate Donald Trump’s speech at the 2016 Republican National Convention, in which Trump said people should be more open minded toward the LGBT community.

Plus, Gelsomino added, marriage equality is a conservative issue. “We need to end this constant expansion of government in the affairs of marriage.”

Sen. Jim Rice, R-Caldwell, sat behind him and listened. “So how should we deal with divorce issues related to property and custody?” asked Rice, a divorce attorney.

“That’s an interesting matter,” replied Gelsomino, adding civil issues such as those are different than who should be allowed to ordain a marriage.

Ultimately, Gelsomino said, the majority of young Republicans favor gay marriage — a statement backed up by Pew Research Center, which reports 58 percent of Republicans born after 1980 are in support. A similar majority is in favor of marijuana legalization.

But for the most part, attendees of the Republican convention were born well before 1980. That’s not a problem for the Idaho Republican Party right now. The state party has a reserve of active organizers and candidates, as well as donors with deep pockets.

But Gelsomino says the party is losing out by not listening to younger voices.

“There are issues that I don’t feel are being addressed, or are addressed but end up being defeated,” Gelsomino said citing CBD as another example. While the party welcomes young participants on the surface, most Republicans stand firm in their beliefs without allowing much room for discussion on other viewpoints, he said.

Rice argued it’s not that the party doesn’t make room for young people. Rather, he said, “our tendency is to desire articulate, thoughtful leaders, and people become more articulate and more thoughtful as they age.”

By that measure, the Idaho Legislature is theoretically full of articulate, thoughtful lawmakers; The average age was 63 in 2016.

But there is an influx of relatively young faces in the House GOP caucus, said House Assistant Majority Leader Brent Crane: Priscilla Giddings, Dustin Manwaring, Bryan Zollinger, James Holtzclaw, Paul Amador, and Greg Chaney, and newly elected representative Britt Raybould, all in their 30s and early 40s.

There are also young Republicans working behind the scenes: A number of state party staffers, campaign workers and volunteers are in their 20s. But most prominent elected GOP officials are in their 50s, 60s or 70s.

Crane, a Nampa Republican, was elected to House leadership when he was in his 30s. Now 44, he acknowledges that nationwide, Democrats have done a better job of engaging young people.

“I think the Democrats are looking to the future,” Crane said, pointing to 28-year-old Alexandria Ocasio-Cortez, a Democratic Congressional nominee from New York.

Republicans, however, “have some work to do.”

The challenge, said Idaho State Tax Commissioner Janet Moyle, is tying traditional values to societal and generational changes.

“Because the truth of the matter is the youth is our future, and if you exclude them your party doesn’t go anywhere,” Moyle said.

Gelsomino has had friends ask why he doesn’t identify as a Democrat. “Because I’m a Republican,” he quips. Gelsomino grew up in an Italian Roman Catholic family, and believes in small government and other conservative principles.

He sees a future for himself in politics. The question is the timeline. He recalled a conversation with a older Republican lawmaker — he declined to say which one — who said he would do well in office “when you’re my age.”

That’s not going to work for Gelsomino, he said. “I can’t wait forty, fifty years.”

 

Percolating ideas

Saturday morning, as the party considered plank proposals during the convention’s floor session, Gelsomino walked up to the microphone and made his argument.

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Dom Gelsomino, left, talks to Rep. Mike Moyle, Shara Zollinger, and Rep. Bryan Zollinger before Saturday’s floor session at the Republican State Conention. After Gelsomino argued unsuccessfully for the Republican Party to support marriage equality in its platform, Zollinger tweeted out a message of support: “We as Republicans are and need to remain the party of inclusion, less intrusive government means government has no business in licensing families. Thank you for reminding some of these party principles.” Melissa Davlin/Idaho Reports

With a clear voice, he argued that conservatives should embrace limited government in people’s personal lives, that Christianity encourages love and acceptance, that President Trump is on the same page.

 

Rice stood in the back and listened. The longer Gelsomino spoke, the more the crowd began to grumble, with some people yelling for order. “I don’t care if someone’s gay,” one delegate muttered to Rice.

“Dom needs to say this,” Rice countered.

Ultimately, the Republicans voted against Gelsomino and adopted a plank proposal asserting the right of states to reject federal definitions of marriage. But, Rice noted, a number of delegates sided with Gelsomino.

“What Dom had to say will percolate in people’s minds,” Rice said. “Minds don’t all change at the same rate.”

But are young minds more open to new ideas than those in their 60s and 70s?

Not necessarily, Rice said. “They just have more time to change.”

 

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Democratic campaign manager advised fringe candidate Harley Brown on media attacks after police report

Updated 1:10 pm June 29 with comments from Bistline.

 

By Melissa Davlin, Idaho Reports

The campaign manager for a Democratic statewide candidate advised fringe Republican gubernatorial contender Harley Brown during Idaho’s primary election, offering tips on how to respond to reports that Brown threatened a radio host.

Anthony Shallat is the campaign manager for Democratic attorney general hopeful Bruce Bistline.

In a February email forwarded to media outlets, Shallat encouraged Brown to run, writing “I truly believe that the next step is for your presidential race is to put your name in the hat for governor this time around,” saying the move would generate media attention. Shallat then encouraged Brown in April to attack the media as “biased” and “unfair,” invoking President Donald Trump, in response to a police report filed by KBOI 670 host Nate Shelman.

Shallat, an attorney, said he offered advice to Brown as a friend, and had no official role or connection with the Brown campaign. He previously represented Brown during his 2016 presidential campaign, helping Brown with FEC compliance, he said.

Brown, a disabled veteran and perennial candidate in Idaho Republican primaries, is known for his biker persona, outlandish statements, and a viral 2014 Idaho Public Television gubernatorial debate (which, full disclosure, was moderated by this reporter).

But coverage of Brown took a more serious turn during the 2018 primary election after an on-air verbal altercation with Shelman. Upon finding out he wouldn’t be invited to KBOI 670’s governor debate, Brown cursed at Shelman, then left the studio. He then wrote “die motherf—–” in an email to Shelman.

Shelman filed a police report, as did Idaho Public Television after Brown sent a similarly threatening email regarding its debates.

In an April 3rd email to Brown, Shallat said a Statesman article covering the Shelman incident “could have been worse.”

“I suggest emphasizing two points,” Shallat wrote. “1. You are a peaceful man but the biased King Maker, Nate Shelman, made you upset because he is not letting the people decide who is the best candidate.”

“2. The media’s treatment of you is the same as what happened to Donald Trump. The media is picking and choosing who should be given a platform in politics. Its unfair and unamerican. The media tried shutting Donald Trump down but the people got him elected. You want to take your message to the people.”

“I also think you should call Nate Shelman ‘fake news,’” Shallat continued. “Do not resort to any threats, but expose his biased conduct.”

Brown forwarded the April email to Idaho Public Television in an attempt to prove he was running an active campaign and receiving media attention, one of the criteria for participation in IPTV’s debate. (Brown did not qualify for the debate, prompting another threatening email.)

In a Thursday interview with Idaho Reports, Shallat disputed Brown’s previous characterization that he volunteered for the campaign.

“The advice I gave Harley was essentially as a friend,” Shallat said. “I was never affiliated with him in any official capacity.”

Shallat said he did not stand by his earlier comments about Shelman and the media, but declined to say why he made them in the first place.

“I’ve given legal advice to Harley Brown on and off since 2014,” Shallat wrote in an email to Idaho Reports. “Although Harley and I disagree on most political views, I believe he is not only entitled to legal representation but also should be allowed to participate in the political process. In 2018, Harley sought my advice as someone who has helped him navigate the political and legal process before. At the time I corresponded with him in 2018, I was not serving as his attorney or in any official or unofficial capacity with his campaign for governor. Any suggestion otherwise is inaccurate.”

Shallat said he had informed some people at the Idaho Democratic Party about his association with the Republican candidate, but couldn’t say who knew.

Lindsey Snider, communications director for the Idaho Democratic Party, said Thursday IDP didn’t know about Shallat’s association with Brown. She declined further comment.

Bistline responded in a Friday e-mail to Idaho Reports:

“Sorry for the delay in responding.  Not surprisingly this went into my Trash file which I rarely check.  I am wondering why, with the many real problems effecting our community, you choose to spend your news budget on this.”

“From what I understand, Tony offered passing and casual advice to help Mr. Brown better convey his views about the treatment he was receiving from a a member of the media.  I belief that our system benefits when any candidate, even one I strongly disagree with and consider to be a fringe candidate, effectively conveys his message. Consequently, I am not troubled that Tony offered Mr. Brown some nominal assistance with his message.   Fake news generation and biased media power brokering are huge problems for our electoral system and need to be named and confronted every time they surface no matter who the candidate is or what their views may be.  Hopefully you already understand this.”

 

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A Total Election Miscommunication

This week the state’s highest elections office wrote letters to the most powerful political players alleging they had broken the law. The recipients may face fines for supposed campaign finance violations, but those letters could be going to innocent groups and people.

It’s 13 days after a critical campaign finance deadline. That number will be unlucky for 12 PACs and three people who face allegations by the state that they didn’t properly disclose the money they spent.

It’s not clear, however, whose at fault.

Several high-profile PACs, as late as June 27, appeared to be in violation of Idaho campaign finance laws, according to the Secretary of State’s office. The Idaho Realtors PAC who raised $651,518 and spent $259,611 in this year’s primary is the highest profile group that has been accused of violating state law by the elections office.

The Idaho Realtors PAC was one of the biggest spenders in the primary election. Cutting large checks for independent expenditures in favor of Lt. Gov. Brad Little, who was running as a gubernatorial candidate.

The filing deadline was June 14.

PACs and individuals could face a $50-a-day fine for their tardiness. Yet, “our goal is to get disclosure rather than to balance the budget on fine money,” said Deputy Secretary of State Tim Hurst to Idaho Reports Tuesday. “So we may coddle the candidates and PACs more than we should.”

The Idaho Realtors were not the only pro-Brad Little PAC who missed the June 14 deadline. The Agriculture & Natural Resources Industry PAC who raised $22,060 and spent $16,623, which included donations to Little, will also be receiving a fine letter. 

Many of the letter recipients may be confused when they open their mailbox.

Idaho Reports reached out to the Secretary of State’s office at 11:30 am on Tuesday with a list of PACs whose reports did not appear on the state’s website. Hurst responded in an email by saying “The PAC’s listed below have (y)et to file their post-primary reports. It has not yet been determined if a fine will be imposed.”

Idaho Reports then reached out to the six PACs Hurst said had not reported. Several did not respond.  Others disputed the idea that they had not reported.  

Sue Wigdorski, the treasurer for the Political Action Committee for Education, told Idaho Reports “I think you may not have the correct report. We did file on time.”

“The issue will be resolved by tomorrow at the latest,” wrote Max Pond of the Idaho Realtors to Idaho Reports in an email on Tuesday. The realtors have “a history of always accurately reporting and, in some cases, over-reporting. We will continue to do so.”

Around 3:30 pm, Hurst started to change the story. Idaho Reports had earlier asked about the Senate Democratic Caucus report. “Lisa told me the Senate Democratic Caucus has filed,” Hurst responded to Idaho Reports inquiry. “She is checking to see why it wasn’t posted and will get it there.”

At that same time, the secretary of state’s office began posting reports on the website which was 12 days after the deadline. Every sunshine disclosure pointed out by Idaho Reports had been posted by 4:00 pm except the Idaho Realtors PAC and the Senate Democratic caucus.

Idaho Reports asked Hurst if his previous statement that the PACs had yet to file was still accurate. Hurst said “the statement is no longer accurate. I just checked again with our campaign finance people who told me the reports for PACE (Political Action Committee for Education), Agriculture & Natural Resources Industry PAC, Idaho Wheat and Barley PAC, and IAFF Local I-83 Political Action Committee were received today.”

The reports are time stamped by the Secretary of State’s office. Two of the filings are in fact time stamped June 26, the day Hurst claimed. Two are not. Take a look:

IAFFPACEBarleyAG&NAT

A little after 4:00 pm on Tuesday, Idaho Reports received an email from Dorothy Canary of the Secretary of State’s office.

“We have received all of the reports that you listed except for Realtors PAC,” Canary said, “The fine letter went out in today’s mail so the fine will begin on June 28th of $50.00 dollars a day until the report is received in our office per Idaho Code 67-6625A.”

The realtors were not the only people to receive this letter. Several PACs that had already filed the 30-day report will also be receiving the message. Here is the list and status of all recipients as of Wednesday morning:

AIA Idaho Political Action Committee (No 30-day Report), Idaho Democratic Latino Caucus (No 30-day Report), Idaho Social List (Reported), Meridian Firefighters IAFF Local 4627 (Nothing reported this cycle), Opportunity Idaho Committee (Reported), Realtors PAC (No 30-day Report), Agriculture & Natural Resources Industry PAC (Reported), Idaho Wheat & Barley PAC (Reported), Fair Share Idaho (No 30-day Report), Keep Idaho Elections Accountable, Liberty Shoot (Nothing reported this cycle), Local 5005 Worley Firefighters PAC (No 30-day Report).

Three individuals who ran for elected office should also be checking their mail; Dalton B Cannady (No 30-day Report), LeeJoe Lay (Reported), Jay Waters III (Nothing reported this cycle).

“Prior to send(ing) out fine letters to those who missed the filing deadline,” Hurst said. “Our office calls and e-mails the various treasurers who have not filed reminding them to get their reports in.”

Despite the calls and emails there still appears to be some significant miscommunication in the process. Multiple people on the above list will receive a letter despite having already filed their 30-day report, and almost two weeks after the deadline there is still a slim chance of fines.

“This is a total miscommunication on my behalf,” Pond told Idaho Reports. “We will be in compliance today. I have successfully uploaded the documents.”

Shortly before this story published The Idaho Realtors PAC 30-day report appeared on the Secretary of States website.

 

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Idaho Democrats won’t criticize Jordan. Why? They need her supporters.

By Melissa Davlin, Idaho Reports

In a Democratic primary where candidates are almost identical on the issues, the conversation has turned to endorsements.

In case you’ve missed the social media bickering and debate jabs from the last few weeks, here’s a summary: Paulette Jordan has national support, touting endorsements from well-known progressives like Cher, Van Jones and Khizr Khan. Missing from that list: Any of the Democratic lawmakers she served with in the Legislature. Twelve of the 17 have endorsed AJ Balukoff, while the other five are staying neutral. Balukoff also has endorsements from Idaho Democratic heavy hitters past and present: former House minority leaders Wendy Jaquet and John Rusche, retired Rep. Shirley Ringo, and former U.S. Attorney Betty Richardson, among many others.

To her credit, Jordan and her team have turned her lack of legislative endorsements into a plus. They hosted a rally the Saturday before the primary called “Endorsed By The People,” taking advantage of the same anti-establishment fervor that gained both Bernie Sanders and Donald Trump so much support in 2016. Meanwhile, Balukoff has kept his campaign positive, focusing on his support and not attacking hers.

Still, Democrats and independents have noticed. Sprinkled among the #ImWithPaulette and #BlueWave tweets are persistent questions from uneasy voters: Why doesn’t Jordan have any endorsements from her former colleagues?

And why aren’t those lawmakers being frank about why they don’t back Jordan?

There are a handful of documented frustrations surrounding Jordan’s time in the Legislature. She didn’t shepherd much of anything into law. (Compare that to Reps. Ilana Rubel and Melissa Wintrow, both of whom were voted into office in 2014, the same year as Jordan. They have been at the forefront of a multitude of high-profile, bipartisan issues, including mandatory minimums, changes to rape kit testing, and civil asset forfeiture reform.)

Jordan resigned in the middle of the 2018 legislative session, leaving District 5 without a representative — and Democrats down a vote on the critical House State Affairs Committee for more than a week while Gov. Butch Otter decided on a replacement.

There are other grumblings and rumors about about Jordan — note the high-level staffers leaving her campaign days before the primary. And a recent Balukoff endorsement from Rep. Sue Chew, who spent a good amount of time working for Paulette Jordan’s legislative campaign, raised eyebrows among Boise politicos.

But when reporters ask for comments on the record, Democrats demur, preferring instead to focus on why they support Balukoff.

Why? One theory: Even with all their frustrations with Jordan supporters, establishment Democrats don’t want to alienate this new, energetic base.

The last Democratic governor, Cecil Andrus, left office in January 1995. There are Paulette Jordan supporters who were born after that, who have never known an Idaho where Democrats were a force. Jordan herself wasn’t old enough to vote at the time. (To be clear, neither was this reporter.) Endorsements from former Democratic heavyweights mean a lot to establishment party members, but the 20- and 30-something progressives who are backing Jordan have made it clear they’re not impressed.  

There are short-term considerations, too. If Jordan wins the primary, Idaho Dems will have to rally behind her in an attempt to disrupt the long streak of Republican rule in Idaho. They know anything they say about Jordan now could be used against her in the general election. Democrats have no room for error in November if they hope to beat the GOP nominee. They can’t afford a #NeverPaulette or a #NeverAJ movement; They’ll need every vote they can get.

Even if that excitement can’t get Jordan or Balukoff into the governor’s office, increased turnout from progressives could help Dem candidates in close legislative districts, or even elect a Democratic state superintendent. Young voters are excited to vote for Paulette Jordan in the primary, sure, but can the party get them to show up for the Cindy Wilsons and the David Nelsons and the Mark Nyes in the general? Not if Democratic elders estrange them now.

Regardless of who wins the nomination for governor, the Jordan supporters are going to play a big role in the future of the Idaho Democratic Party — as long as the party figures out how to harness that energy and enthusiasm.

The fight isn’t so much about who will be the next governor. It’s about the identity of the party moving forward. And in that sense, Jordan may have already won.  

 

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Follow the Money

By Seth Ogilvie

If money truly drives elections, we wanted to give you an idea of who is attempting to “buy” Idaho’s First Congressional District.

Over $1.2 million has flown into the campaign coffers of the six major Republican candidates. Much of that money has come from out of state and the candidates themselves.

It can be hard to visualize how a campaign is being financed when you’re staring at endless spreadsheets, so we built up some maps to show where the money is coming from.

We’ll start at the top of the list with the runaway winner in the 2018 money war: Former state senator Russ Fulcher.

Fulcher Contributions

Fulcher raised over $435,000, and that number has most likely increased since his last filing. The largest donations come from the Club For Growth, the House Freedom Fund and a $35,000 loan Fulcher gave himself.

As you can see from the heat map, Fulcher had strong monetary support in Idaho, but he also received a significant amount of contributions from outside the state.

Fulcher is also in the lead with the amount of money he hasn’t yet spent. His current cash on hand totals over $82,000.

Former lieutenant governor David Leroy was next, with almost $332,000.

Leroy Contributions

Almost a third of Leroy’s money came out of his own pocket — about $100,000. Leroy did not receive the large PAC donations that Fulcher did. The majority of his money came from individual citizens.

His most substantial contributor was actually his campaign treasurer, Richard Howard, who donated over $9,000. He was able to exceed the $2,700 limit because they were in-kind contributions — in other words, Howard donated his accounting services.

Leroy still has almost $55,000 on hand.

Rep. Luke Malek finished third in the fundraising race with nearly $250,000.

Malek Contributions

 

Malek donated less the 10% of the total money his campaign raised. The one-time $24,000 donation he made did, however, came late in the campaign, on April 20.  

The majority of the rest of the money came from individual donations, with a few groups like the Coeur d’Alene Tribe and the Simplot Company PAC sprinkled in with large contributions.

Malek has spent almost all his money and currently has about $2,700 on hand.

Michael Snyder rounded out the over-$100K club.

Snyder Contributions

Snyder put in less than 5% of the roughly $124,000 he raised. The big story of Snyder’s money is that it came from out of state. Of his top 10 itemized contributions, only one came from Idaho.

This is not surprising, as Snyder is a prominent conservative author and broadcast personality that may actually be better known outside of Idaho.

Snyder still has about $24,500 on hand.

Lt. Col. Alexander Gallegos surprised a few political gadflies by finishing fifth in fundraising with over $70,000.

Gallegos Contributions

Gallegos, like Snyder, mined his out-of-state contacts for contributions. Gallegos has strong military ties, and it shows in this map, with large amounts of money coming from military communities.

Gallegos donated less than 7% of the total money to his campaign in the form of loans. His most significant contributor was a self-employed commercial contractor living in California, who donated the maximum for both the primary and general totaling $5,400.

Gallegos still has about $28,500 on hand.

Coming in last in the money race among the major candidates was “the girl with all the guns,” Rep. Christy Perry.

Perry Contributions

In Perry’s latest filling, she only received 17 itemized contributions, including a $1,000 gift from her husband.

Perry raised less than $16,000. To put that in context, Perry managed to raise almost double that — over $30,000 — in her last state legislative primary in 2016. If you add up the money Perry and her husband put into this campaign, it makes up almost a third of the total.

Perry currently has about $3,700 on hand.

If it was just money that won elections, the race would already be over. But it’s not. Votes cast by people like you win elections. So whoever you’re supporting, get out there on Tuesday and vote for your favorite candidate, whether they raised a few thousand dollars or almost half a million. The choice is still in your hands — and that’s the great thing about democracy.

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Primary Concerns

By Devon Downey

Days before the primary election, candidates are being pulled from the ballot and then returned, and an investigation was reported as opened, closed, and then possibly opened again into a major gubernatorial candidate. All these things were initiated by the office of the Idaho Secretary of State — the person charged with maintaining fair and open elections.

Over the past few days, the Secretary of State’s office has lost one case disqualifying a candidate, basically withdrew from a second one, and then made a Comey-like announcement about the Ahlquist campaign.

Regardless of the intent, Secretary of State Lawerence Denney’s office has affected multiple elections, doing possible harm to former Reps. Phil Hart and Kathy Sims’ campaigns, as well as Dr. Tommy Ahlquist’s gubernatorial run.  Both Hart and Sims have been disadvantaged by the legal uncertainty of their campaigns, with ballots already having been cast which excluded both of them.

Denney said that voters who mailed absentee ballots should be able to request a new ballot and have their old one spoiled, as long as the clerk can verify the ballot belongs to the voter. Those who voted early in person are not able to get a new ballot. At the time of posting, District 3 where Sims is running, has had 384 absentee votes turned in and 166 in-person early votes. Hart’s District 7 has had 261 absentee votes and 240 in-person early votes. Not all of these ballots had their names crossed out, but there are probably ballots that did.

Both Denney and Deputy Secretary of State Tim Hurst maintain that these candidates may not be legally qualified to serve in the legislature, and that those qualifications will be reexamined after the primary. This statement alone could cause voters to change their mind and not vote for Hart or Sims.

Ahlquist was on the wrong side of a very Comey-esque announcement. Just one week before the election, Hurst claimed that the campaign was under investigation for campaign finance violations, then a few hours later claimed he misspoke. During an Idaho Reports interview on Thursday, Denney clarified that the Attorney General’s office has the complaint now, but acknowledged that his office had “dropped the ball.”

However, Denney also stated that his office expected an amended campaign finance report that would have clarified some of the in-kind contributions. The investigation, not investigation, maybe investigation talk coming out of the Secretary of State’s office can’t be helpful for Ahlquist’s campaign.

Questions have been raised the past few years about election integrity and the ability of political leaders to put their thumb on the scale. These three campaigns have all been affected by the Secretary’s office.

We will never know exactly what impact the Secretary of State’s actions had on these races. All three of these elections may be close, and Denney told Idaho Reports that he is expecting to see election contests filed.

For more on this story, watch Idaho Reports at 8:00 pm Friday or online any time after the show at http://idahoptv.org/idreports and see our full interview with Secretary of State Lawerence Denney.

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A “two-tiered system”: Court considers undocumented workers’ eligibility for disability benefits

By Melissa Davlin

In 2010, Elfego Marquez was tasked with painting an area over a tall doorway. The problem: There were no ladders available at the job site. After consulting with his boss, he stacked two buckets on top of each other, then climbed up to get to work.

supremecourt2He fell, landing on a concrete floor and suffering injuries to his shoulder and wrist that required multiple surgeries. Marquez, unable to lift his right arm above his head, was told by his doctor he couldn’t return to work.

He received temporary disability benefits, and his medical bills were paid. But when he sought permanent disability benefits, his employer, Pierce Painting, and the State Insurance Fund resisted. Why? Marquez is undocumented.

Undocumented workers prop up parts of Idaho’s economy, mostly working in physically demanding — and often dangerous — jobs. In the past, the Idaho Industrial Commission, which regulates workers’ compensation in the state, has denied permanent disability benefits based on legal status.

But last year, the commission ruled Marquez could, in fact, pursue permanent disability, prompting an appeal from the State Insurance Fund and bringing the case before the Idaho Supreme Court. Whatever the court decides, it will affect how the state handles claims from undocumented workers in the future — and could affect whether undocumented employees seek help for their injuries in the first place.

 

Different benefits

When workers are injured, there are a number of benefits they can seek, depending on the severity of the injury and how much it impairs their work.

Marquez received some temporary benefits from Pierce Painting and the State Insurance Fund following his accident, and his medical bills were paid in full.

But the sticking point came when Marquez sought permanent disability benefits when his physician told him he could no longer paint.

Permanent physical disability benefits have a higher statutory threshold to meet. Other types of benefits assume the injured worker will eventually be able to return to work, either at the same job or in another field. Not so with permanent disability.

The fight over Marquez isn’t so much about how hurt he really is. Rather, the State Insurance Fund’s argument hinges on a legal technicality: In order to grant permanent disability, the Industrial Commission must consider whether the employee can reasonably get another job.

During Wednesday’s oral arguments, attorney Clinton Casey said because Marquez is undocumented and isn’t legally able to get a job in the United States in the first place, the statute automatically precludes him from seeking permanent disability.

The Industrial Commission agrees Marquez’s legal status is a factor — one that would seemingly play in Marquez’s favor. In its ruling, commissioners pointed to the limited work available to undocumented workers. Not only are there fewer jobs available, but those jobs are almost all physically demanding.

“Remember, the pre-injury labor market for such an individual is small, and probably consists of the meanest type of unskilled manual labor,” the decision says. “Therefore, if disability is measured by considering the actual pre-injury and post-injury labor markets for an illegal alien, it seems likely that higher disability awards will result than would be the case for a similarly situated documented laborer.”

That’s the case for Marquez, who has a college education and taught in Mexico for several years. But those credentials don’t transfer to Idaho, leaving him and other undocumented workers to pursue mostly manual labor jobs in the US.

Marquez couldn’t be reached for comment.

 

Shadow economies, legal fictions

In the past, the Industrial Commission has ruled against undocumented workers. Take a look at this key passage from its 2011 decision in Otero v Briggs Roofing Company:

“Before the accident, (Otero) had no access to the labor market. The same is true after the accident. In effect, the accident, while it did affect (his) physical capacities, has not affected his ability to engage in gainful activity in his relevant labor market. He did not possess that ability in the first place.”

In the 2017 decision on Marquez’s claim against Pierce Painting, the commission walked that back, saying it isn’t responsible for enforcing federal immigration law. (“Had it been enforced by those with the authority to do so,” commissioner Thomas Baskin wrote, “we would not now be struggling with how or whether to apply state workers’ compensation law to what common experience tells us is a shadow economy of some consequence.”)

Instead, the commission says it’s responsible only for state workers’ compensation. “We cannot, in good conscience, create a two-tiered system of compensation, when all workers are intended to be protected under the (law),” the decision says.

(Chairman Thomas E. Limbaugh dissented with his fellow commissioners, saying Marquez’s legal status “entirely eclipses” the injuries sustained on the job as a factor in his future employment.)

Attorney James Arnold, who represented Marquez in Wednesday’s oral arguments, pointed to the “legal fiction” that propped up the commission’s previous denials. Employers keep hiring undocumented workers, who keep coming to Idaho without documentation because of the way the country’s immigration system and guest worker programs are set up.

“That’s why they continue to be employed,” Arnold said. “And they’re going to continue to be employed, and to (ignore that) is a legal fiction.”

Arnold said he has represented other undocumented workers have been injured on the job. Many settle claims in mediation.

This decision, however, will give guidance to the Idaho Industrial Commission on how to handle future claims. By paying benefits to injured undocumented workers, “we’re not necessarily endorsing future unlawful activity,” Arnold argued. “We’re accepting a reality… that there are approximately 35,000 undocumented workers in this state.”

 

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