BOISE — Idaho Gov. Brad Little and Secretary of State Lawerence Denney late Tuesday filed an emergency application for a stay to the U.S. Supreme Court, aimed at halting Reclaim Idaho’s online signature drive for a school funding initiative that kicked off Monday pursuant to a federal court order.
Little and Denney, who previously failed to convince either the U.S. District Court in Idaho or the U.S. Court of Appeals for the 9th Circuit to stay the order, told the nation’s highest court that the judge’s order would “seize control of Idaho’s initiative process and delegate the vast majority of the Idaho Legislature’s, Secretary of State’s and county clerk’s constitutional and statutory authorities and duties to the very private entities invested in getting their initiative petition on the ballot.” They also argued that the high court should take up the matter to resolve a difference between circuits.
The 9th Circuit has scheduled oral arguments on the state’s appeal of the federal court order for early August.
“We are resolute in our plans to appeal the district court’s decision,” Gov. Brad Little said in a statement Wednesday. “We requested the U.S. Supreme Court stay the decision. We will continue our efforts to preserve the integrity of Idaho’s duly enacted laws and to prevent the disruption to our upcoming elections that the district court decision will cause.”
Reclaim Idaho, the same group that successfully pushed the voter initiative to expand Medicaid in Idaho in 2018, is now pressing a school-funding initiative, aimed at increasing income tax rates on corporations and the wealthy 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.
Idaho schools are facing budget cuts for the coming school year, with Little proposing 5% cuts to accommodate anticipated shortfalls due to the impact of the coronavirus pandemic on the state’s economy.
“It’s unfortunate that the governor is determined to block this initiative, especially considering that our schools are now facing deep budget cuts,” said Luke Mayville, founder of Reclaim Idaho. “But we are confident that the Supreme Court will uphold our constitutional right to petition our government, and in the meantime, we’re moving full speed ahead with our drive to collect 30,000 electronic signatures.”
As of mid-day Wednesday, the drive already had collected nearly 5,000 additional signatures, Mayville said.
The signature drive to qualify the initiative for the ballot was halted in March due to the pandemic, and shortly thereafter, the governor’s statewide stay-home order made in-person signature gathering illegal. That didn’t lift until April 30, the same day as the deadline to qualify the measure for the ballot.
Reclaim Idaho sued in federal court, and U.S. District Judge B. Lynn Winmill held that the state had violated the 1st Amendment to the U.S. Constitution by not allowing a safe way for the group to continue its drive, which was already halfway there. He ordered Idaho to either certify the measure for the November ballot as-is, or allow the group another 48 days of online signature-gathering, the same number of days it lost to the shutdown order.
The state declined to choose either, so the court ordered the online drive. Little and Denney appealed the judge’s ruling to the U.S. Court of Appeals for the 9th Circuit, which has scheduled oral arguments on the merits for early August.
In its filing to the U.S. Supreme Court, the state contended there’s a split between federal circuits over whether the 1st Amendment applies to “state laws regulating the mechanics of the initiative process,” with the 9th, 1st and 6th circuits saying it does, and the 10th, 7th and D.C. circuits differing.
Deborah Ferguson, the Boise attorney and former longtime federal prosecutor who’s representing Reclaim Idaho pro bono, or without charge, said there’s no circuit split on whether the 1st Amendment applies to initiative petition signature gathering.
“It’s very well-settled Supreme Court law that there’s a 1st Amendment right concerning petition circulation,” she said Wednesday. “Petition circulation is core political speech protected by the 1st Amendment. … There’s no dispute about that, and all circuits are subject to the Supreme Court’s holding on that.”
Deputy Idaho Attorney General Robert Berry argued in the state’s filing that Reclaim Idaho could have started its petition drive earlier, and that it was the pandemic, not the governor’s order, that halted the drive; both those arguments were rejected by the federal court in Idaho.
Berry also wrote that online signature verification is suspect; Reclaim Idaho has contracted with DocuSign, which verifies signatures for real estate transactions, court filings and other matters worldwide, to authenticate the signatures. “What happens if and when this now-privatized system fails or data is leaked?” Berry wrote. “What happens to the confidence of the electorate?” He contended “voter confusion and distrust … will inevitably result.”
It’s not clear when the Supreme Court will respond to the state’s filing, but it typically would do so in a brief written order, with all members of the court weighing in; it may simply say the stay application is either granted or rejected. Before that, the high court likely will give Reclaim Idaho a chance to file a response.