By Paul Williams

Law360 (July 20, 2020, 4:33 PM EDT) -- Idaho's governor and secretary of state told the Ninth Circuit that a lower court abused its discretion in allowing an income tax increase ballot measure campaign to gather signatures electronically and beyond the petition circulation deadline amid the pandemic.

Republican Gov. Brad Little and Secretary of State Lawerence Denney on Friday argued that U.S. District Judge B. Lynn Winmill's order granting the Reclaim Idaho campaign a preliminary injunction against the state's election laws should be vacated. The order, which allowed the campaign 48 extra days to gather signatures, and to obtain them electronically because of safety concerns during the novel coronavirus pandemic, "placed a near impossible burden" on the state to potentially administer the question for the Nov. 3 ballot, they said.

The 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.

Little and Denney argued that the order will only supply state and local officials with about a week to verify the signatures for the initiative, instead of the regular 60-day period, and that verifying electronic signatures, which Idaho law does not allow for initiative petitions, would be difficult.

"This wholesale alteration of Idaho's initiative process inflicts irreparable harm on the state, and it undermines the public's interest and confidence in a sound, predictable election system that incorporates anti-fraud measures," Little and Denney said.

Also on Friday, U.S. Supreme Court Justice Elena Kagan asked Reclaim Idaho to respond by Tuesday to the officials' emergency application requesting the nation's highest court to stay Judge Winmill's order. The Ninth Circuit denied Little and Denney's stay request on July 9 and expedited the briefing schedule on the case's merits. A hearing before the appellate panel is scheduled for Aug. 10.

In granting the injunction, Judge Winmill sided with Reclaim Idaho in finding that Little and Denney violated the campaign's First Amendment rights by failing to provide a safe method to gather signatures for the initiative during the state's stay-at-home order amid the pandemic.

However, the officials said the stay-at-home order was permissible under their constitutional authority to keep Idaho's residents safe during the onset of COVID-19, the respiratory illness caused by the virus. The order was issued March 25 and stayed effective through Idaho's April 30 deadline to gather signatures.

"To the extent the order limited Reclaim Idaho's ability to collect signatures, such restriction was appropriate in an effort to control the spread of COVID-19," the officials said.

Further, the officials said that although the stay-at-home order incorporated election personnel guidance from the U.S. Department of Homeland Security's Cybersecurity and Infrastructure Security Agency, the Reclaim Idaho campaign "never sought clarification or confirmation" of its ability to collect signatures during the pandemic.

According to court documents, Reclaim Idaho said it had gathered about 30,000 of the 55,057 signatures required to qualify for the Nov. 3 ballot when the pandemic hit the state in March. The campaign said in a statement Saturday that it has collected 6,000 more signatures since Judge Winmill's order was issued.

Reclaim Idaho attorney Deborah Ferguson of Ferguson Durham PLLC previously told Law360 that the state could make "reasonable accommodations" for the campaign to continue obtaining signatures. She noted that Idaho already made election adjustments in light of the pandemic when the state conducted its May primary as an all-absentee-ballot election.

The campaign has argued that the U.S. Supreme Court has held that the right to circulate petitions is core political speech that is protected by the First Amendment, and that Idaho officials infringed on that right by effectively truncating the deadline during the pandemic.

Representatives for Little, Denney and Reclaim Idaho did not respond to requests for comment Monday.

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.

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

The case is Reclaim Idaho et al. v. Bradley Little et al., case number 20-35584, in the U.S. Court of Appeals for the Ninth Circuit.

--Additional reporting by Daniel Tay. Editing by Neil Cohen.

For a reprint of this article, please contact reprints@law360.com.