Little v. Reclaim Idaho ( 2020 )

Cite as: 591 U. S. ____ (2020) 1
ROBERTS, C. J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A18
_________________
BRADLEY LITTLE, GOVERNOR OF IDAHO, ET AL. v.
RECLAIM IDAHO, ET AL.
ON APPLICATION FOR STAY
[July 30, 2020]
The application for stay presented to JUSTICE KAGAN and
by her referred to the Court is 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 peti-
tion for a writ of certiorari is granted, the stay shall termi-
nate upon the sending down of the judgment of this Court.
CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO,
JUSTICE GORSUCH, and JUSTICE KAVANAUGH join, concur-
ring 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 nei-
ther option, the District Court 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.
2 LITTLE v. RECLAIM IDAHO
ROBERTS, C. J., concurring
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 (2010) (per cu-
riam). 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 is-
sue of election administration. States retain “considerable
leeway to protect the integrity and reliability of the initia-
tive process.” Buckley v. American Constitutional Law
Foundation, Inc., 525 U.S. 182, 191 (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 chal-
lenges to the sort of state laws at issue here. According to
the Sixth and Ninth Circuits, the First Amendment re-
quires scrutiny of the interests of the State whenever a neu-
tral, 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 con-
trast, have held that regulations that may make the initia-
tive 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. Mar-
kiewicz-Qualkinbush, 892 F.3d 935, 938 (CA7 2018); Initi-
ative 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 pan-
demic, the Circuits have applied their conflicting frame-
works to reach predictably contrary conclusions as to
whether and to what extent States must adapt the initia-
Cite as: 591 U. S. ____ (2020) 3
ROBERTS, C. J., concurring
tive process to account for new obstacles to collecting signa-
tures. Compare, e.g., Miller v. Thurston, ___ F. 3d ___, ___,
2020 WL 4218245, *8 (CA8, July 23, 2020), and Morgan v.
White, 964 F.3d 649, ___, 2020 WL 3818059, *2 (CA7 2020)
(per curiam), with, e.g., SawariMedia, LLC v. Whitmer, 963
F.3d 595, 597 (CA6 2020).
Second, there is a fair prospect that the Court will set
aside the District Court order. INS v. Legalization Assis-
tance Project of Los Angeles County Federation of Labor, 510
U.S. 1301, 1304 (1993) (O’Connor, J., in chambers). This is
not a case about the right to vote, but about how items are
placed on the ballot in the first place. Nothing in the Con-
stitution requires Idaho or any other State to provide for
ballot initiatives. See Meyer v. Grant, 486 U.S. 414, 424
(1988). And the claims at issue here challenge the applica-
tion of only the most typical sort of neutral regulations on
ballot access. Even assuming that the state laws at issue
implicate the First Amendment, such reasonable, nondis-
cretionary restrictions are almost certainly justified by the
important regulatory interests in combating fraud and en-
suring that ballots are not cluttered with initiatives that
have not demonstrated sufficient grassroots support. See
Buckley, 525 U.S., at 204–205. The State’s established ver-
ification procedure is no empty formality. In Idaho’s largest
county, clerks reject about 30 to 40 percent of signatures at
this stage.
Third, the State is likely to suffer irreparable harm ab-
sent a stay. Right now, the preliminary injunction disables
Idaho from vindicating its sovereign interest in the enforce-
ment of initiative requirements that are likely consistent
with the First Amendment. See Abbott v. Perez, 585 U. S.
___, ___–___, and n. 17 (2018) (slip op., at 20–21, and n. 17).
The dissent does not regard the burden on the State as sig-
nificant, but in my view that judgment fails to appreciate
that the initiative process is just one aspect of a primary
4 LITTLE v. RECLAIM IDAHO
ROBERTS, C. J., concurring
and general election system facing a wide variety of chal-
lenges in the face of the pandemic. The Governor and Sec-
retary of State here, for example, have suspended some lim-
its on absentee voting and processed requests for absentee
ballots through online channels. In addition to preparing
for elections with a record number of absentee ballot re-
quests, the county clerks must now also learn, under ex-
traordinary time pressures, how to verify digital signatures
through an entirely new system mandated by the District
Court. The District Court did not accord sufficient weight
to the State’s discretionary judgments about how to priori-
tize limited state resources across the election system as a
whole.
The pending appeal in the Ninth Circuit does not elimi-
nate the present strain imposed by this structural injunc-
tion on the time and resources of state and local officials,
and the costs to the State will continue to add up over the
coming weeks. Nor does the balance of equities counsel in
favor of denying relief at this point. See Hollingsworth, 558
U.S., at 190. While a stay may preclude this particular in-
itiative from appearing on the ballot this November, that
consequence is attributable at least in part to Reclaim
Idaho, which “delayed unnecessarily” its pursuit of relief
until more than a month after the deadline for submitting
signatures. Fishman v. Schaffer, 429 U.S. 1325, 1330
(1976) (Marshall, J., in chambers); see also Benisek v. La-
mone, 585 U. S. ___, ___–___ (2018) (per curiam) (slip op.,
at 3–4). Finally, the dissent is wrong to criticize this Court
for supposedly offering the “first view” on this matter. The
District Court and the Court of Appeals have already acted
on the State’s request for a stay, which is now before us.
“A preliminary injunction is an extraordinary remedy.”
Winter v. Natural Resources Defense Council, Inc., 555 U.S.
7, 24 (2008). And the injunction here is all the more ex-
traordinary given the extent to which the District Court re-
cast the initiative process. See Lewis v. Casey, 518 U. S.
Cite as: 591 U. S. ____ (2020) 5
ROBERTS, C. J., concurring
343, 349 (1996). No one has overlooked that the State bears
an “especially heavy burden” in justifying a stay pending its
appeal to the Ninth Circuit. Packwood v. Senate Select
Comm. on Ethics, 510 U.S. 1319, 1320 (1994) (Rehnquist,
C. J., in chambers). But in my view that burden has been
met, especially in light of the transformative and intrusive
nature of this preliminary injunction.
Cite as: 591 U. S. ____ (2020) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A18
_________________
BRADLEY LITTLE, GOVERNOR OF IDAHO, ET AL. v.
RECLAIM IDAHO, ET AL.
ON APPLICATION FOR STAY
[July 30, 2020]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, dissenting from the grant of stay.
Yet again, this Court intervenes to grant a stay pending
appeal, in this case less than two weeks before the Court of
Appeals for the Ninth Circuit is poised to hear an expedited
appeal on a preliminary injunction entered by the District
Court. 1 That injunction requires the State of Idaho to ac-
commodate delays and risks introduced by the COVID–19
pandemic by extending the deadline for accepting ballot-in-
itiative signatures and permitting digital collection of sig-
natures. The State claims that it requires immediate inter-
vention from this Court because, absent a stay, it must
expend time and resources verifying digital signatures in
advance of the extended signature-submission deadline.
But the equities do not favor the State, at least not yet.
——————
1 Although an applicant seeking a stay pending appeal “has an espe-
cially heavy burden,” Packwood v. Senate Select Comm. on Ethics, 510
U.S. 1319, 1320 (1994) (Rehnquist, C. J., in chambers), this Court has
begun to grant such stays with notable frequency. See, e.g., Department
of Homeland Security v. New York, 589 U. S. ___ (2020); Republican Na-
tional Committee v. Democratic National Committee, 589 U. S. ___ (2020)
(per curiam); Barr v. Lee, ante, p. ___ (per curiam); Barr v. Purkey, ante,
p. ___; Merrill v. People First of Alabama, ante, p. ___; Wolf v. Cook
County, 589 U. S. ___ (2020); Henry Schein, Inc. v. Archer & White Sales,
Inc., 589 U. S. ___ (2020). It is beginning to look like such an applicant
has nearly no burden at all.
2 LITTLE v. RECLAIM IDAHO
SOTOMAYOR, J., dissenting
The Ninth Circuit will hear Idaho’s case on August 11, al-
most a month before Idaho’s Secretary of State must certify
ballot questions to county clerks (on September 7), and al-
most three months before election day. If the District
Court’s preliminary injunction turns out to have been im-
proper, Idaho will still have time to omit respondents’ initi-
ative from the November ballot. Respondents, on the other
hand, are in a far more precarious position. Cf. Barnes v.
E-Systems, Inc. Group Hospital Medical & Surgical Ins.
Plan, 501 U.S. 1301, 1304–1305 (1991) (Scalia, J., in cham-
bers) (even where an injunction bars enforcement of a
State’s laws, “sound equitable discretion” requires balanc-
ing harms to stay applicant against harms to respondent).
The stay granted today puts a halt to their signature-collec-
tion efforts, meaning that even if respondents ultimately
prevail on appeal, it will be extremely difficult, if not impos-
sible, for them to collect enough qualifying signatures by
any reasonable deadline for the November ballot. 2 In other
words, the delay occasioned by this Court’s stay likely
dooms to mootness respondents’ First Amendment claims
before any appellate court has had the chance to consider
their merits (and, indeed, before this Court has had the
chance to consider any potential petition for certiorari).
To be sure, as the concurrence points out, the District
Court’s preliminary injunction burdens Idaho’s county
clerks with the task of verifying digital signatures during
an already busy election year. But Idaho’s undeniable in-
terest in vacatur of the preliminary injunction should be
——————
2 As the concurrence notes, the fact that respondents are short on time
is attributable, at least in part, to their delay in filing suit. But given the
difficulties of securing legal counsel during a pandemic, I cannot agree
with THE CHIEF JUSTICE’s conclusion that their delay was “ ‘unneces-
sar[y].’ ” Ante, at 4 (quoting Fishman v. Schaffer, 429 U.S. 1325, 1330
(1976) (Marshall, J., in chambers) (concluding that applicants seeking to
challenge a years’ old statute had “delayed unnecessarily in commencing
. . . suit”)).
Cite as: 591 U. S. ____ (2020) 3
SOTOMAYOR, J., dissenting
considered in the first instance by the Ninth Circuit, which
must weigh the State’s temporary expenditure of resources
against the significant First Amendment questions raised
by respondents. It is premature to assume, based only on
that court’s (necessarily quick) resolution of Idaho’s emer-
gency motion for a stay, that the Ninth Circuit will strike
that balance incorrectly upon consideration of the parties’
full briefing and oral argument.
Nonetheless, based on only the chance that Idaho will not
prevail on appeal, that Idaho will seek certiorari in this
Court, and that this Court will grant that petition and re-
verse the (hypothetical) judgment below, this Court takes
the extraordinary step of staying the District Court’s pre-
liminary injunction pending appeal. In doing so, the Court
dispenses liberally a “rare and exceptional” remedy, one
that this Court traditionally has granted “only ‘upon the
weightiest considerations,’ ” merely to address alleged
harms that would exist in the mine-run of similar cases.
Fargo Women’s Health Organization v. Schafer, 507 U.S.
1013, 1014 (1993) (O’Connor, J., concurring in denial of ap-
plication) (quoting O’Rourke v. Levine, 80 S. Ct. 623, 624, 4
L. Ed. 2d 615, 616 (1960) (Harlan, J., in chambers)). And it
deprives itself of the benefit of the appellate court’s full con-
sideration and review of the important constitutional issues
at the heart of this case. See Wolf v. Cook County, 589 U. S.
___, ___ (2020) (SOTOMAYOR, J., dissenting from grant of
stay) (slip op., at 6). Especially given that the Ninth Circuit
has signaled its intent to act expeditiously, there is no cause
for this Court to usurp the Court of Appeals’ responsibility
“to review the District Court’s decision . . . in the first in-
stance.” McLane Co. v. EEOC, 581 U. S. ___, ___–___ (2017)
(slip op., at 11–12).
Today, by jumping ahead of the Court of Appeals, this
Court once again forgets that it is “ ‘a court of review, not of
first view,’ ” id., at ___ (slip op., at 11), and undermines the
public’s expectation that its highest court will act only after
4 LITTLE v. RECLAIM IDAHO
SOTOMAYOR, J., dissenting
considered deliberation. I respectfully dissent from the
grant of stay.