U.S. District Courthouse in Boise

James D. McClure U.S. District Courthouse and federal building in Boise

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U.S. District Judge B. Lynn Winmill has just issued an order denying the state's motion to stay his decision last week to give Reclaim Idaho a second chance at qualifying its education funding initiative for the November ballot, after the COVID-19 stay-home order cut off its signature gathering weeks before the deadline. The order didn't lift until the day of the deadline.

"A stay pending appeal overlaps with the function of a preliminary injunction," the judge wrote in his order today. "Each prevents 'some action before the legality of that action has been conclusively determined.'"

"Here, the Court will exercise its discretion to deny the State’s motion," Winmill wrote. "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 on-line and then provide (the group) ... with the requested 48-days to complete the on-line 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."

Last week, the court gave Gov. Brad Little and Secretary of State Lawerence Denney a choice: They 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 Friday at 5 p.m. 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, who along with partner Craig Durham is representing Reclaim Idaho pro-bono, or without charge, in the case, said this morning, "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."

She said the state's filing Friday put the ball in the judge's court.

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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