By Daniel Tay

Law360 (July 1, 2020, 3:11 PM EDT ) Idaho's governor and secretary of state asked the Ninth Circuit on Wednesday to stay a federal judge's order directing the state to provide supporters of an income tax hike measure additional time to gather signatures electronically.

Republican Gov. Brad Little and Secretary of State Lawerence Denney appealed a Tuesday order by District Court Judge B. Lynn Winmill that requires the state to allow Reclaim Idaho an additional 48 days to gather signatures electronically for the group's Invest in Idaho initiative. The initiative, which Reclaim Idaho is seeking to place on the Nov. 3 ballot, would ask voters to raise the top state income tax rate and the corporate income tax rate. If approved, the higher tax rates are estimated to raise $170 million annually, earmarked for education funding.

Little and Denney filed a notice of appeal in the U.S. District Court for Idaho on Tuesday, and their appeal was recorded by the Ninth Circuit on Wednesday. Little told Law360 that the appeal was a request to stay Judge Winmill's order and that he hoped to have a quick ruling on it.

In an order issued June 23, Judge Winmill found that the state's pandemic-related shutdown interfered with the campaign's First Amendment rights to obtain signatures for the initiative, and on Monday he denied a Friday motion by the state to stay his original order.

Judge Winmill had given state officials until Friday to either certify the Invest in Idaho initiative for the ballot or give the Reclaim Idaho campaign 48 days to collect the outstanding signatures electronically. Instead, the officials shunned the order, saying that both options would violate state law and compromise the integrity of Idaho's election.

Reclaim Idaho filed a motion Monday asking the court to order the state to certify the question for the ballot, saying that Little and Denney had shown they would not cooperate with the organization or comply with the court's order. Judge Winmill instead ordered the state Tuesday to allow Reclaim Idaho a 48-day period to collect signatures electronically beginning July 9, saying that it was not clear the state would be unwilling to cooperate on online signature gathering if ordered to do so.

The initiative would ask voters to raise the top state 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 of at least $500,000. It would also ask voters to raise the corporate income tax rate to 8% from 6.925%.

The campaign lodged its complaint against the officials on June 8, alleging they violated its First Amendment rights by not providing a safe method to gather signatures amid the spread of COVID-19, the respiratory illness caused by the novel coronavirus, before the April 30 deadline to submit petitions. Reclaim Idaho had gathered about 30,000 of the 55,057 signatures required to qualify for the Nov. 3 ballot when the pandemic hit the state in March, according to court documents.

When Judge Winmill sided with the campaign in ruling from the bench June 23, he made it clear that he didn't fault the officials for addressing the pandemic but still held that Reclaim Idaho's rights were violated, the campaign's counsel previously told Law360.

Reclaim Idaho's counsel did not immediately respond to requests for comment after the court denied the stay.

Little and Denney had called the court's decision "a surprising exercise of judicial activism" in a joint statement after the June 23 ruling. Denney's office did not respond to additional requests for 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 Attorney General's Office.

The case is Reclaim Idaho et al. v. Brad Little et al., case number 20-35584, in the U.S. Court of Appeals for the Ninth Circuit.

--Editing by Joyce Laskowski.

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