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BOISE — A federal judge on Monday denied a motion from Gov. Brad Little and Secretary of State Lawerence Denney to stay his ruling granting Reclaim Idaho a second shot at qualifying its school funding initiative for the November ballot, and the nonprofit group filed a new, expedited motion to enforce the judge’s order and certify the measure for the ballot right away.

“It’s great news that the state has been denied in its first attempt to block our initiative,” said Luke Mayville, Reclaim Idaho founder. “We are encouraged by Judge (B. Lynn) Winmill’s affirmation that last week’s court order still stands and that delay is unacceptable.”

The group’s all-volunteer signature-gathering effort to qualify the initiative for the ballot was halted by the governor’s stay-home order due to the COVID-19 pandemic; the order didn’t lift until the deadline for submitting signatures.

The group had asked Little and Denney to make accommodations to allow their signature drive to continue safely during the stay-home order, but both refused. Winmill ruled that the state had violated the First Amendment to the U.S. Constitution by doing so.

Little and Denney said last week that they planned to appeal the court order, and on Monday, Little said, “We remain committed to appealing this decision and defending Idaho’s sovereignty over its ballot initiative process.”

However, the state had not yet filed an appeal with the U.S. 9th Circuit Court of Appeals on Monday.

Last week, the court gave the state a choice: It could either certify the initiative for the ballot with the signatures already collected, which are roughly just over half of those required; or give the group another 48 days of signature-gathering — the number of days it lost when the stay-home order took effect — and allow it to collect signatures electronically, for safety during the COVID-19 pandemic. The state was given until 5 p.m. Friday to choose one of the two options; it chose neither, instead responding to the court that neither option was acceptable and it wanted the judge’s ruling stayed so the state could appeal to the 9th Circuit.

Deborah Ferguson, a former longtime federal prosecutor who along with law partner Craig Durham is representing Reclaim Idaho pro bono, or without charge, in the case, said Monday, “They were ordered to make a choice, and they haven’t. So they’re just defying the court. … I’m stunned, actually. I can’t say I’ve ever seen anything like this in all my years of practicing.”

“They’re obviously very intent on fighting it tooth and nail,” she said. “It’s disappointing. I would think that they would have more respect for the rule of law.”

Winmill wrote in his order on Monday, “Simply put, staying the effect of the Court’s decision will deny the Plaintiffs an effective remedy. There is a narrow window of opportunity to provide Reclaim Idaho and the State the time necessary to establish the process and protocol for gathering signatures online and then provide (the group) … with the requested 48 days to complete the online solicitation and gathering of signatures. Granting a stay of the Court’s decision would effectively prevent Reclaim Idaho from having its initiative placed on the 2020 general ballot, and thereby deny it the remedy required by the First Amendment.”

Reclaim Idaho’s expedited motion, filed Monday afternoon, asks the court to enforce its order by certifying the initiative for the ballot now, allowing for an up-or-down vote by Idahoans in the November general election.

“Defendants have made it clear that they do not intend to comply with either option that the Court ordered them to choose,” Ferguson wrote in the court filing. “In light of their extraordinary response, Reclaim Idaho requests that the Court order Defendants to certify the initiative for the November ballot.”

That still would allow time for an appeal to the 9th Circuit, she noted, though the other option might not.

The group, which sponsored the successful Medicaid expansion initiative and uses all-volunteer signature gatherers, is pressing a new “Invest in Idaho” initiative proposing to raise income tax rates on corporations and the wealthy by 3 percentage points to generate $170 million a year for public schools, reducing the need for local supplemental property tax levies. It’s the exact opposite of what Idaho lawmakers have been doing in recent years; they’ve been gradually lowering both the individual and corporate income tax rates, saying the moves provide tax relief and make Idaho more competitive, as more and more Idaho school districts have begun relying on frequent, voter-approved supplemental levies to fund basic school operations, from teachers to textbooks.

Winmill wrote in his ruling last week that Reclaim Idaho was diligently gathering signatures and was ahead of the pace it followed for its successful Medicaid expansion initiative, which Idaho voters approved with more than 61% support in 2018.

The Idaho attorney general’s office declined to comment on Monday.

Mayville said in a statement, “Our initiative would save Idaho schools from deep budget cuts, and it would do so with zero new taxes on property and zero new taxes on anyone making under $250,000 per year. Considering how badly Idaho needs investment in K-12 education, it is unfortunate that state officials are unwilling to comply and allow this initiative to proceed.”

Betsy Z. Russell is the Boise bureau chief and state capitol reporter for the Idaho Press and Adams Publishing Group. Follow her on Twitter at @BetsyZRussell.

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