Republican Gov. Brad Little and Secretary of State Lawerence Denney argued in an emergency application Tuesday that the state will suffer irreparable harm if the Reclaim Idaho campaign continues to collect electronic signatures, which are not permitted under Idaho law, after the April 30 petition circulation deadline.
Little and Denney said the integrity of the election is compromised by District Court Judge B. Lynn Winmill's June 30 order allowing the campaign 48 extra days to gather signatures for its Invest in Idaho initiative, and to obtain signatures electronically because of safety concerns during the pandemic. The order will force state and local officials to navigate a compressed timeline to administer the question for the ballot and will create difficulties in verifying signatures, they argued.
"The state is already suffering irreparable injury to the voting system established by the Idaho Legislature given that the federal district court has discarded it in favor of a system established by the district court and a private entity," Little and Denney said.
Judge Winmill sided with Reclaim Idaho in finding that Little and Denney violated the campaign's First Amendment rights by failing to provide a safe method to gather signatures for the Invest in Idaho initiative during the state's coronavirus-related shutdown. The Ninth Circuit denied the officials' request for a stay last week and has scheduled an Aug. 10 hearing on the case's merits.
The 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.
In asking the justices to grant a stay, Little and Denney said Judge Winmill's order ran counter to the high court's 2006 decision in Purcell v. Gonzalez
, which they said 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."Little and Denney also argued that a stay was warranted because if the Ninth Circuit were to rule in favor of Reclaim Idaho, they believe the justices would likely agree to resolve a circuit split over whether state regulations of the initiative petition process violate the First Amendment.
Some circuit courts have held that the First Amendment is inapplicable to certain ballot initiative regulations, while others have ruled that laws governing initiatives can run afoul of the First Amendment, Little and Denney said. They also said courts could benefit from the justices' guidance on how states can regulate elections amid the spread of COVID-19, the respiratory illness caused by the virus, because other challenges to state election laws are percolating in the lower courts.
"This court must take action to clarify that states retain their constitutional authority to manage elections even in a pandemic," they said.
But Deborah Ferguson of Ferguson Durham PLLC, who represents Reclaim Idaho, told Law360 on Wednesday that a stay isn't warranted because the Ninth Circuit has expedited the case's briefing schedule and will hold a hearing about three months before the election.
"It seems there'd be no need at this juncture … for the Supreme Court to weigh in," she said.
Ferguson also said the high court unanimously held in its 1988 Meyer v. Grant
decision that circulating initiative petitions is core political speech that is protected by the First Amendment. The state could make "reasonable accommodations" for the campaign to continue obtaining signatures, she said, noting Idaho already made election adjustments in light of the pandemic when the state conducted its May primary as an all-absentee-ballot election."Restricting Reclaim [Idaho] from its ability to obtain these signatures … irreparably harms Reclaim from exercising its First Amendment right of core political speech," she said.
When Reclaim Idaho lodged its complaint against the officials on June 8, the campaign 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, according to court documents. Luke Mayville, co-founder of Reclaim Idaho, said in a statement Tuesday that the campaign gathered 3,000 signatures in its first day of gathering signatures electronically.
Scott Graf, a spokesman for the state Attorney General's Office, which is representing Little and Denney, provided Law360 with a copy of the filing but said he had no comment on the case while the litigation is pending.
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.
Reclaim Idaho is represented by Deborah Ferguson and Craig Durham of Ferguson Durham PLLC.
The case is Bradley Little et al. v. Reclaim Idaho et al., case number 20A18, in the United States Supreme Court.
--Additional reporting by Daniel Tay. Editing by Robert Rudinger.
Update: This story has been updated to include the case number.
For a reprint of this article, please contact reprints@law360.com.