Court reinstates Idaho ballot initiative rules

The Supreme Court on Thursday put on hold rulings by a federal court in Idaho that had relaxed the state’s rules for ballot initiatives for the November 2020 election. The Supreme Court’s order, which drew a sharp dissent from Justice Sonia Sotomayor, was the latest in a series of disputes arising from the COVID-19 pandemic to reach the justices, who have now on several occasions signaled that federal courts should not alter rules relating to an election even to accommodate concerns arising from the pandemic.

The justices’ order granted a request filed earlier this month by the state of Idaho, which asked them to temporarily block an order by a federal district judge that gave Reclaim Idaho, which describes itself as a “grassroots movement designed to protect and improve the quality of life of working Idahoans,” additional time to collect signatures for an “Invest in Idaho” initiative to increase funding in K-12 education. The district court’s order would also require the state to accept electronic signatures. Those orders, the state complained, “contravene an almost century-old principle” of state law requiring signatures to be collected in person and (among other things) create “a heavy layer of additional work for the county clerks while they undertake the difficult task of conducting elections” in a pandemic. Moreover, the state suggested, Reclaim Idaho’s failure to collect the signatures in person was largely a problem of its own making: The group waited too long to start its efforts, and then it suspended its campaign in mid-March because of the pandemic.

Urging the court to deny the state’s request, Reclaim Idaho downplayed the significance and scope of the district court’s order. The ruling, the group stressed, made only a “minor and temporary modification to a small aspect of Idaho’s initiative process in the middle of a pandemic.” The order, the group continued, merely gave “temporary relief” to “one grassroots group trying to get one citizens’ initiative on this November’s ballot. The district court’s order changes nothing about how people will vote” or how many signatures the group must get, Reclaim Idaho emphasized. And the U.S. Court of Appeals for the 9th Circuit has already expedited the state’s appeal, the group added, eliminating the need for the Supreme Court to intervene now.

In a brief order on Thursday, the court granted Idaho’s request to put the district court’s rulings on hold while the state appeals to the 9th Circuit and, if necessary, the Supreme Court. In a dissent that was joined by Justice Ruth Bader Ginsburg (who underwent a non-surgical procedure at a hospital in New York on Wednesday), Sotomayor observed that the 9th Circuit is scheduled to hear oral argument in Idaho’s case on Aug. 11. If the state wins, she posited, it will still have plenty of time to leave Reclaim Idaho’s initiative off the November ballot. But because the court’s intervention will stop Reclaim Idaho from collecting electronic signatures, it will be “extremely difficult, if not impossible,” for the group to collect enough signatures to qualify for the November ballot if the group ultimately prevails in the litigation. More broadly, Sotomayor was critical of her colleagues’ decision to intervene in this and other recent cases: She noted that “[a]lthough an applicant seeking a stay pending appeal has ‘an especially heavy burden,’ this Court has begun to grant such stays with notable frequency. It is beginning to look,” Sotomayor concluded, “like such an applicant has nearly no burden at all.”

Chief Justice John Roberts wrote an opinion agreeing with the court’s decision, which was joined by Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh. In Roberts’ view, the state had met each of the requirements for the court to intervene. Among other things, Roberts observed, the Supreme Court would be likely to overturn the district court order because the dispute “is not a case about the right to vote, but about how items are placed on the ballot in the first place.” Therefore, he suggested, the state is likely entitled to impose “reasonable, nondiscretionary restrictions.” What’s more, Roberts continued, the district court’s order would impose a real strain on the state, which is already facing “a wide variety of challenges in the face of the pandemic.” Responding directly to Sotomayor, Roberts stressed that “[n]o one has overlooked that the State bears an ‘especially heavy burden’ in justifying a stay pending its appeal to the Ninth Circuit. But in my view,” he concluded, “that burden has been met, especially in light of the transformative and intrusive nature of this preliminary injunction.”

It is not publicly known how Justices Clarence Thomas, Stephen Breyer or Elena Kagan voted on the request for a stay, because none of those justices chose to sign on to Roberts’ concurring opinion or Sotomayor’s dissent. Five votes were needed to issue the stay, so at least one of Thomas, Breyer or Kagan must have voted to issue the stay along with Roberts, Alito, Gorsuch and Kavanaugh.

The ruling on Thursday was the second time this month that the court has intervened to block a lower-court order that would have relaxed state election procedures in light of the pandemic. On July 2, the justices granted a request by Alabama to block a lower-court ruling that would have made it easier for voters in the state to cast absentee ballots in the state’s primary election runoff. That ruling came a few days after the court denied a request from the Texas Democratic Party to temporarily reinstate a lower-court ruling that would have allowed all voters in the state to vote by mail without an excuse because of the COVID-19 pandemic. And in April, the justices granted a request by the Republican National Committee and the Republican Party of Wisconsin to block a lower-court order that had extended the deadline for absentee ballots to be submitted in that state’s April election.

This post was originally published at Howe on the Court.