Little v. Reclaim Idaho

Little v. Reclaim Idaho

Opinion

 [*2616]  Application for stay presented to Justice Kagan and by her referred to the Court granted. The district court’s June 23, June 26, and June 30, 2020 orders are stayed pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

Concur by: ROBERTS

Concur

Chief Justice Roberts, with whom Justice Alito, Justice Gorsuch, and Justice Kavanaugh join, concurring in the grant of stay.

The District Court in this case ordered Idaho either to certify an initiative for inclusion on the ballot without the requisite number of signatures, or to allow the initiative sponsor additional time to gather digital signatures through an online process of solicitation and submission never before used by the State. When the State chose neither option, the District Court [***2]  authorized the sponsor to join with a third-party vendor to develop and implement a new online system over the course of nine days. The Ninth Circuit subsequently denied the State’s request for a stay pending appeal, and Idaho now seeks the same relief from this Court.

Under the well-settled standard for this form of relief, the State must show (1) a “reasonable probability” that this Court will grant certiorari, (2) a “fair prospect” that the Court will reverse the judgment below, and (3) a “likelihood that irreparable harm will result from the denial of a stay.” Hollingsworth v. Perry, 558 U. S. 183, 190, 130 S. Ct. 705, 175 L. Ed. 2d 657 (2010) (per curiam). In my view, the State has satisfied each requirement for a stay.

First, the Court is reasonably likely to grant certiorari to resolve the split presented by this case on an important issue of election administration. States retain “considerable leeway to protect the integrity and reliability of the initiative process.” Buckley v. American Constitutional Law Foundation, Inc., 525 U. S. 182, 191, 119 S. Ct. 636, 142 L. Ed. 2d 599 (1999). In exercising this discretionary authority, the States depend on clear and administrable guidelines from the courts. Yet the Circuits diverge in fundamental respects when presented with challenges to the sort of state laws at issue here. According to the Sixth and Ninth Circuits, the First Amendment requires [***3]  scrutiny of the interests of the State whenever a neutral, procedural regulation inhibits a person’s ability to place an initiative on the ballot. See Thompson v. DeWine, 959 F. 3d 804, 808 (CA6 2020) (per curiam); Angle v. Miller, 673 F. 3d 1122, 1133 (CA9 2012). Other Circuits, by contrast, have held that regulations that may make the initiative process more challenging do not implicate the First Amendment so long as the State does not restrict political discussion or petition circulation. See, e.g., Jones v. Markiewicz-Qualkinbush, 892 F. 3d 935, 938 (CA7 2018); Initiative and Referendum Institute v. Walker, 450 F. 3d 1082, 1099-1100 (CA10 2006) (en banc); Dobrovolny v. Moore, 126 F. 3d 1111, 1113 (CA8 1997). Since the onset of the pandemic, the Circuits have applied their conflicting frameworks  [*2617]  to reach predictably contrary conclusions as to whether and to what extent States must adapt the initiative process to account for new obstacles to collecting signatures. Compare, e.g., Miller v. Thurston, ___ F. 3d ___, ___, 2020 U.S. App. LEXIS 23143, 2020 WL 4218245, *8 (CA8, July 23, 2020), and Morgan v. White, 964 F. 3d 649, ___, 2020 WL 3818059, *2 (CA7 2020) (per curiam),  [**1142]  with, e.g., SawariMedia, LLC v. Whitmer, 963 F. 3d 595, 597 (CA6 2020).

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