By Lisa Soronen
To get a citizen’s initiative on the ballot in Idaho, petitioners must obtain signatures from 6% percent of electors by April 30.
Reclaim Idaho asked to be temporarily allowed to gather signatures online due to COVID-19. It sued after state government officials informed it that Idaho statutes don’t allow electronic signatures for petitions and the governor didn’t intend to take executive action.
As the U.S. Supreme Court explained, “[t]he District Court in this case ordered Idaho either to certify an initiative for inclusion on the ballot without the requisite number of signatures, or to allow the initiative sponsor additional time to gather digital signatures through an online process of solicitation and submission never before used by the State. When the State chose neither option, the District Court authorized the sponsor to join with a third-party vendor to develop and implement a new online system over the course of nine days.”
Idaho Governor Bradley Little (R) asked the Supreme Court to not allow the district court order to go into effect while the decision is being appealed to the 9th Circuit. The Supreme Court agreed.
The district court ruled in favor of Reclaim Idaho concluding that the governor burdened Reclaim Idaho’s “core political speech” in violation of the First Amendment by “refus[ing] to take executive action” allowing Reclaim Idaho to collect signatures online during the pandemic.
Before the Supreme Court, the governor argued the district court’s order should be frozen because the district court “assumed the State legislature’s constitutional authority to set the process by which initiatives are made, as well as the statutory authority of Idaho’s election officials, and then delegated almost all of that authority to Reclaim Idaho.”
Reclaim Idaho defended the injunction as “a minor and temporary modification to a small aspect of Idaho’s initiative process in the middle of a pandemic–allowing for industry-standard electronic signature gathering and extending the deadline for doing so–which is itself one small part of Idaho’s electoral laws and regulations.”
The 9th Circuit allowed the district court decision to go into effect while litigation continued in the case. The Supreme Court stayed it.
The stay application went to Justice Elena Kagan who referred the matter to the entire court. Chief Justice John Roberts wrote a brief concurring opinion which Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh joined. The chief justice opined that this case met the three criteria required to receive a stay.
First, the Supreme Court was likely to ultimately decide this case on the merits because it resolves disagreements between the federal courts of appeals. According to the chief justice, ‘[s]ince the onset of the pandemic, the Circuits have applied their conflicting frameworks to reach predictably contrary conclusions as to whether and to what extent States must adapt the initiative process to account for new obstacles to collecting signatures.”
Second, Roberts concluded there was a “fair prospect” the Supreme Court would rule against Reclaim Idaho on the merits because the Constitution doesn’t require states to allow ballot initiatives.
Finally, Idaho was suffering “irreparable harm” without a stay because “the preliminary injunction disables Idaho from vindicating its sovereign interest in the enforcement of initiative requirements that are likely consistent with the First Amendment.”
Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented. They argued the equities, as of right now, favor Reclaim Idaho and not the governor. “The stay granted today puts a halt to their signature-collection efforts, meaning that even if [Reclaim Idaho] ultimately prevail on appeal, it will be extremely difficult, if not impossible, for them to collect enough qualifying signatures by any reasonable deadline for the November ballot.”
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.