By Abraham Gross

Law360 (July 23, 2020, 6:09 PM EDT ) An Idaho federal court's ruling allowing more time to gather signatures for a tax increase ballot measure is harming the state's electoral process, Idaho's governor and secretary of state told the U.S. Supreme Court, urging a stay of the order.

In a reply brief filed Wednesday, Republican Gov. Brad Little and Secretary of State Lawerence Denney urged the justices to bypass an appeals court review of the federal district court's decision. The lower court found that the state's coronavirus-related shutdown violated Reclaim Idaho's First Amendment rights to gather initiative petition signatures and granted the campaign 48 extra days to gather signatures for its Invest in Idaho initiative.

The lower-court ruling was causing voter confusion and distrust in the electoral system and the Ninth Circuit decision on the merits of the ruling "will simply come too late to prevent irreparable harm to the state," Little and Denney said in the brief.

Circumventing the in-person signature requirement for preventing fraud also hurt the electoral process, the state added, noting that electronic signatures did not offer protections similar to the in-person process that requires the accompanying affidavit of petition circulators.

"The district court's decision to throw out the procedures and processes that the Idaho Legislature deemed important for the prevention of voter fraud is sufficient evidence of the immediate and ongoing damage to the integrity of Idaho's electoral process," the brief said.

The Invest in Idaho initiative would ask voters to raise the state's top income tax rate to 9.925% from 6.925% on individuals, trusts and estates with taxable income of $250,000 or more, or $500,000 for married couples, and raise the corporate income tax rate to 8% from 6.925%. If approved, the higher tax rates are expected to raise $170 million annually, which would be earmarked for education funding.

U.S. District Judge B. Lynn Winmill on June 30 allowed the campaign extra time to gather signatures and the ability to obtain signatures electronically because of safety concerns during the pandemic. The Ninth Circuit denied the officials' request for a stay on July 9 and has scheduled an Aug. 10 hearing on the case's merits. The state officials asked the Supreme Court for an emergency stay on July 14.

In a brief filed Tuesday, Reclaim Idaho told the court that the state would not suffer irreparable harm because the Ninth Circuit had already expedited briefing for the state's appeal and could render a decision almost three months before the election.

The state officials countered that the order inflicted ongoing harm to the state, noting that county clerks are struggling to verify electronic signatures. There is no "industry standard" for collecting electronic signatures for petitions and other courts rejected electronic signature substitutes because they were susceptible to manipulation, they said.

The new Aug. 26 submission deadline for Reclaim Idaho also left little time to verify signatures before the Sept. 7 deadline for the secretary of state to qualify the initiative for the ballot, especially under the added burden of preparing for elections amid the pandemic, the officials said.

In advocating for a stay, the officials noted that the justices had previously stayed orders that fundamentally altered state election laws, including orders that addressed issues related to the pandemic.

"The district court's order eviscerated Idaho's initiative and anti-fraud laws. That harm is ongoing and irreparable," Emily Callihan, communications director for Little, said in an email to Law360. Verifying these signatures will be "near impossible and extremely difficult" based on testimony from an Idaho county clerk, Callihan added.

When asked if there is evidence that the in-person signatures actually prevented fraud, Callihan said state laws are based on the investigations and findings of the state Legislature and that in-person collection has "been effective in preventing fraud in Idaho's initiative process."

Idaho Deputy Secretary of State Jason Hancock told Law360 on Thursday that electronically generated signatures cannot be verified through a comparison to each voter's handwritten or "wet" signature that is filed in voter registration systems.

"When you have a wet signature, you have a physical signature you can verify against," Hancock said. "When there's an electronic signature, an electronic signature is a font, it's not the actual signature of the voter, so what is there to compare it to?"

Hancock also said that the other two pieces of identifying information on electronic signatures, registration status and address, were publicly available.

Scott Graf, public information officer for the state attorney general, told Law360 that the office does not comment on pending litigation beyond court filings.

Representatives for Reclaim Idaho and a spokesperson for Little did not immediately respond to requests for comment on Thursday.

Reclaim Idaho is represented by Deborah Ferguson and Craig Durham of Ferguson Durham PLLC.

Little and Denney are represented by Attorney General Lawrence G. Wasden and by Robert A. Berry, Brian Kane, Steven L. Olsen and Megan A. Larrondo of the Idaho Attorney General's Office.

The case is Reclaim Idaho et al. v. Bradley Little et al., case number 20A18, in the U.S. Supreme Court.

--Additional reporting by Daniel Tay and Paul Williams. Editing by Vincent Sherry. 

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