Little v. Reclaim Idaho

Counsel

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 petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of 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 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 (C.A.6 2020) (per curiam ); Angle v. Miller , 673 F.3d 1122, 1133 (C.A.9 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 (C.A.7 2018) ; Initiative and Referendum Institute v. Walker , 450 F.3d 1082, 1099-1100 (C.A.10 2006) (en banc); Dobrovolny v. Moore , 126 F.3d 1111, 1113 (C.A.8 1997). Since the onset of the pandemic, the Circuits have applied their conflicting frameworks *2617to 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 , 967 F. 3d 727, 740-41 (C.A.8, July 23, 2020), and Morgan v. White , 964 F.3d 649, 652 (C.A.7 2020) (per curiam ), with, e.g., SawariMedia, LLC v. Whitmer , 963 F.3d 595, 597 (C.A.6 2020).