By Daniel Tay

Law360 (July 22, 2020, 2:05 PM EDT ) Idaho's request to block gathering signatures during the novel coronavirus pandemic for a ballot initiative that would increase high-income tax rates would irreparably harm the initiative, its supporters told the U.S. Supreme Court, urging denial of the request.

A federal district court's ruling that Republican Gov. Brad Little and Secretary of State Lawerence Denney's coronavirus-related shutdown violated Reclaim Idaho's First Amendment rights to gather initiative petition signatures "broke no new ground," the campaign told the Supreme Court in a brief Tuesday. Granting the officials' request to stay the lower court order — allowing the campaign 48 extra days to gather signatures for its Invest in Idaho initiative — would leave the campaign no way to collect enough to qualify for the ballot, Reclaim Idaho said.

"If this court were to grant the requested stay, Reclaim Idaho's initiative would be dead in the water," the campaign said.

By contrast, allowing signature gathering would not irreparably harm the state because the Ninth Circuit has already expedited briefing for the state's appeal in that court, the campaign said. This means the lower appeals court's decision will probably come down with almost three months before the election, according to the campaign.

The Invest in Idaho initiative would ask voters to raise the state's top income tax rate to 9.925% from 6.925% on individuals, trusts and estates with taxable income of $250,000 or more, or $500,000 for married couples, and raise the corporate income tax rate to 8% from 6.925%. If approved, the higher tax rates are expected to raise $170 million annually, which would be earmarked for education funding.

District Court Judge B. Lynn Winmill on June 30 allowed the campaign extra time to gather signatures and the ability to obtain signatures electronically because of safety concerns during the pandemic. The Ninth Circuit denied the officials' request for a stay on July 9 and has scheduled an Aug. 10 hearing on the case's merits. The state officials asked the Supreme Court for an emergency stay on July 14.

Reclaim Idaho disagreed with the officials' assertion that Judge Winmill's order ran counter to the high court's 2006 decision in Purcell v. Gonzalez . The officials said Purcell held that federal courts cannot "fundamentally alter the nature of the election and cause voter confusion, particularly close to or in the midst of an election."

The campaign said Judge Winmill had neither altered the state's election rules nor made any changes close to the election, asserting that a temporary change in how signatures are gathered would not cause voter confusion or undermine confidence. 

"The idea that the use of electronic signature gathering in an attempt to place a single citizen's initiative on the ballot will sow mayhem and voter distrust of the election this fall is unfounded," Reclaim Idaho said.

The officials had incorrectly argued there was a circuit split on whether state regulations on the initiative petition process violate the First Amendment, because there was no such split, Reclaim Idaho added. According to the campaign, the cases the officials cited as evidence of a split all recognized that regulating the initiative process can hamper First Amendment rights, and merely determined that the laws at issue in those cases did not.

According to court documents, Reclaim Idaho said it 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. The campaign said in a statement Saturday that it had collected 6,000 more signatures since Judge Winmill's order was issued.

Representatives for Little, Denney and Reclaim Idaho did not respond to requests for comment.

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

Little and Denney are represented by Attorney General Lawrence G. Wasden and by Robert A. Berry, Brian Kane, Steven L. Olsen and Megan A. Larrondo of the Idaho Attorney General's Office.

The case is Reclaim Idaho et al. v. Bradley Little et al., case number 20A18, in the U.S. Supreme Court.

--Additional reporting by Paul Williams. Editing by Neil Cohen.

For a reprint of this article, please contact reprints@law360.com.