By Daniel Tay

Law360 (June 24, 2020, 1:28 PM EDT ) A proposed Idaho ballot measure seeking an income tax increase to fund education may qualify for the November ballot after a federal judge agreed the state's coronavirus-related shutdown had interfered with the First Amendment rights of the measure's proponents.

Idaho Gov. Brad Little and Secretary of State Lawerence Denney must either certify the petition by Reclaim Idaho, whose initiative is titled Invest in Idaho, with no additional signature collection requirements or extend the deadline for the campaign to collect the remaining required signatures electronically, District Court Judge B. Lynn Winmill said on Tuesday.

Judge Winmill, who ruled from the bench, said the state has until Friday to decide which option it would choose. The original deadline to submit petitions for the November ballot was April 30.

The initiative would ask voters on Nov. 3 to raise the top income tax rate to 9.925% from 6.925% on individuals, trusts and estates with taxable income of $250,000 or more, and on married couples with taxable income at least $500,000. It would also ask voters to raise the corporate income tax rate to 8% from 6.925%.

The campaign had argued that the March 25 stay-at-home order by Little, a Republican, issued to curb the spread of the novel coronavirus, ran afoul of the First Amendment by making it impossible to finish gathering signatures for the measure. The stay-at-home order had lasted through the April 30 deadline.

Additionally, Denney's refusal to grant an exception to the requirements for ballot certification to the campaign, despite the pandemic and shutdown order, was unconstitutional because it violated Reclaim Idaho's First Amendment rights, the campaign had asserted.

The judge's ruling was a victory for the children of Idaho, Luke Mayville, co-founder of Reclaim Idaho, told Law360.

"Our kids can't wait. We need to invest in education, if we want to give our young people the chance to make a living," Mayville said, noting Little had recently proposed a $99 million cut to the state' education budget in response to the coronavirus-influenced economic downturn. "Now, it's more important than ever to invest in education, because if we want to have a strong economic rebound we've got to have a strong education system."

Craig Durham, counsel for Reclaim Idaho, told Law360 the organization was very pleased with the decision, saying the governor's actions had shut down its political expression without any reasonable accommodations.

"Judge Winmill's decision is very important because it underscores that those participating in initiative drives are engaging in core political expression under the First Amendment," Durham told Law360. "If they can get an initiative on the ballot, they are also amplifying the discussion on matters of public concern."

Little and Denney said in a joint statement that they would appeal the decision immediately.

"This decision is a surprising exercise of judicial activism," they said in the statement.

Durham told Law360 Judge Winmill had made it clear in his ruling that he did not fault Little for addressing the pandemic while noting that Reclaim Idaho's rights had still been violated.

Mayville, in a Tuesday statement, lauded Judge Winmill's decision, highlighting the judge's reasoning that allowing the campaign to apply its already gathered signatures to the next election cycle was an inadequate remedy because it would result in two years of students potentially missing out on the funding the initiative would provide.

Should Little and Denney appeal, they would likely ask for a stay of the order at the District Court and then at the Ninth Circuit if the first appeal were unsuccessful, according to Durham. Absent a stay, the state must comply with Judge Winmill's order, Durham said.

The campaign had previously asked the court to reduce the number of signatures required for the petition to be submitted. Idaho normally requires petitioners to collect signatures equal to 6% of the number of the state's registered voters in the last general election, and 6% of registered voters at that time in at least 18 legislative districts, according to court documents. Reclaim Idaho asked the court to reduce those thresholds to 2% and require that threshold in only six districts, which would lower the signature requirement to 18,352 from 55,057.

According to court documents, the campaign has gathered about 30,000 of the 55,057 signatures required to place the question on the Nov. 3 ballot. If approved, the income tax increases would take effect Jan. 1, and it is estimated that they would raise $170 million annually for education, according to court documents.

Little and Denney had argued that Reclaim Idaho's requests for more time to gather petitions and obtain electronic signatures would impose heavy administrative burdens on the state. The state may now be in a position where it chooses to allow Reclaim Idaho to obtain electronic signatures to avoid simply placing the initiative on the ballot, Mayville said in his Tuesday statement.

"They basically said it's practically impossible to set up this electronic signature process and make it work," Mayville said, later adding that "now they're put in a really tough spot because they might end up choosing an option that they previously argued wasn't possible."

Little and Denney did not respond to requests for additional comment.

Reclaim Idaho is represented by Deborah Ferguson and Craig Durham of Ferguson Durham PLLC.

Little and Denney are represented by Robert A. Berry and Megan A. Larrondo of the Idaho Office of the Attorney General.

The case is Reclaim Idaho et al. v. Bradley Little et al., case number 1:20-cv-00268, in the U.S. District Court for the District of Idaho.

--Editing by Vincent Sherry. 

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