Idaho officials have asked a U.S. Supreme Court justice to block a lower-court injunction that allows a group backing a ballot initiative to boost education spending in the state to collect electronic signatures and get extra time because of the coronavirus pandemic.
Idaho Gov. Bradley Little and Secretary of State Lawrence Denney, both Republicans, filed the emergency stay application late on July 16 with Justice Elena Kagan, who is the circuit justice for the 9th Circuit, which includes the state.
Reclaim Idaho, based in Twin Falls, is seeking to place its “Invest in Idaho” measure on the fall ballot. The initiative would increase taxes on corporations and individuals with personal income of $250,000 (or $500,000 for married couples). The group says the measure would raise at least $170 million for a new Quality Education Fund, which would distribute money to school districts based on enrollment.
The group, which was behind a successful 2018 initiative to expand Medicaid in Idaho, was trying to gather the necessary 55,000 in-person signatures for the education ballot measure when the coronavirus pandemic hit the United States earlier this year.
Court papers say that Reclaim Idaho voluntarily suspended its signature-gathering efforts in March because of COVID-19. The deadline to gather signatures was May 1.
Reclaim Idaho filed a lawsuit on June 6 alleging that state officials had violated its First Amendment rights by not suspending Idaho law to allow it to collect signatures electronically during the pandemic.
A federal district judge initially gave the state a choice of accepting the initiative for placement on the ballot or allowing Reclaim Idaho to collect electronic signatures, with additional time. The judge later ordered the state to go with the second option, allowing Reclaim Idaho to begin gathering signatures on July 9 for 48 days.
“Ordering an online solicitation pays greater respect to the state’s right to limit the initiative process in ways which do not violate the Plaintiffs’ First Amendment rights,” said U.S. District Judge B. Lynn Winmill.
On July 9, a panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, voted 2-1 to deny the state officials’ request for an emergency stay of the district court’s order. The dissenting judge said state officials had “made a substantial showing that the district court exceeded its authority by awarding relief that effectively rewrites Idaho’s election laws, particularly its law designed to protect against fraud in the initiative process.”
In papers filed with Kagan, the governor and secretary of state say Reclaim Idaho had dragged its feet in collecting signatures for the ballot initiative and nothing the state did barred the group from attempting to continue to collect them safely even amid the pandemic.
The group’s use of a private vendor to collect voter signatures online is open to fraud, the state officials say.
“There can be no question that there is a significant risk of fraud in an online system implemented on nine days’ notice without any testing or vetting by the state—all of which threatens the public interest in maintaining the integrity of, and voter confidence in, the election,” the governor and secretary of state say.
As circuit justice, Kagan may seek a response from Reclaim Idaho. Then, she could act on the emergency request on her own or could refer it to the full Supreme Court for action. [UPDATED Friday 4:55 p.m. Justice Kagan has called for a response to the stay application, due Tuesday at 5 p.m.]
The case is Little v. Reclaim Idaho (No. 20A18).
A version of this news article first appeared in The School Law Blog.