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BOISE — Ruling from the bench on Tuesday afternoon, a federal judge ordered the state to give Reclaim Idaho another chance to qualify its school-funding initiative for the November 2020 ballot.

After hearing online oral arguments and asking extensive questions, U.S. District Judge B. Lynn Winmill gave Gov. Brad Little and Secretary of State Lawerence Denney a choice: Either give Reclaim Idaho another 48 days for signature-gathering and allow it to collect signatures electronically, in light of the COVID-19 epidemic; or declare that the roughly half of the required signatures already collected are sufficient, and certify the measure for the November ballot.

“I don’t fault the governor or the Secretary of State for taking the approach they did,” the judge said. When Reclaim Idaho officials asked the governor and secretary to make accommodations to allow continued signature-gathering as the pandemic forced a statewide shutdown, both refused.

“They have a constitutional obligation to enforce the laws of the state, they chose to do so,” the judge said. “But in this case, doing so brought them in conflict with, I think, the plaintiffs’ 1st Amendment rights. And so from that point of view, I want it clearly understood that I am not criticizing the governor or the Secretary of State.”

“I am simply acknowledging that their exercise of their state constitutional duties, as they understood them, unfortunately resulted in a situation that I think interfered with the plaintiffs’ First Amendment right to participate in the initiative process.”

The lawsuit, filed by attorneys Deborah Ferguson and Craig Durham of Ferguson Durham PLLC, notes that Idaho has had the Uniform Electronic Transactions Act on its books for 20 years, providing that no record or signature may be denied legal effect or enforceability “solely because it is in electronic form.” As a result, electronic signatures are legally enforceable in Idaho for mortgages, tax returns, financial transactions and even court filings.

“In the second decade of the 21st Century, this is a reliable and commonplace means of signing legally binding documents,” the lawsuit stated.

If the state chose to allow electronic signature-gathering for COVID-19 safety, it would give the group 48 more days to gather the needed signatures, the number it lost when the statewide stay-home order made in-person signature-gathering illegal. That order lasted until April 30, the deadline to file signatures to qualify an initiative for the November general election ballot.

The group, which sponsored the successful Medicaid expansion initiative, 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.

Deputy Idaho Attorney General Robert Berry vigorously argued against the lawsuit, contending the group's failure to make the signature deadline was its own fault. He noted that the state actually allowed 18 months for signature gathering, but the group didn't start until six months before the deadline.

Winmill said there's no way the group could have known that COVID-19 would strike in the midst of its big signature-gathering push; no one, including the courts in Idaho, foresaw that, he noted. The "Constitution doesn't turn on that," he said. "There has to be some reasonableness in the diligence that they've shown."

When the same group, which uses all-volunteer signature gatherers, successfully qualified the Medicaid expansion initiative for the ballot in 2018, it followed a similar timeline, the judge noted, and this time, it was actually ahead of where it had been with that measure when the state shut down for the coronavirus pandemic.

The judge asked, "If they've done it successfully in the past, why would they think they need to do something different in this case?"

Berry said an Arizona case, which didn't involve the COVID-19 pandemic, did cite a group's failure to take advantage of the full 18 months allowed. But Winmill said, "There's no reason to think under the facts of this case that the plaintiffs were doomed to failure … given their past track record."

The judge also questioned the state's claim that allowing a second chance would cause hardship for county clerks around the state. Ferguson told the court, "Reclaim Idaho is asking for the right to get this on the ballot, to have public discourse about it, and citizens to vote it up or down depending on their own preferences."

The judge said, "What I think is clear is that the COVID-19 pandemic threw a wrench into the works." The state showed it could modify its election-related practices to accommodate constitutional rights during the pandemic, he said, when it moved the May primary election to all-absentee voting, for the first time ever.

The judge ordered Idaho to pick one of the two alternatives by 5 p.m. Friday.

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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