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Weighting the scales


Appellate court decisions result in winners and losers in any specific case, but the issues involved often are worked through murky gray areas. Consider for example the July 30 U.S. Supreme Court decision in Little v. Reclaim Idaho.

The background is fairly well known in Idaho. The group Reclaim Idaho has been trying to promote an “Invest in Idaho” tax and schools initiative for the November election ballot. When the pandemic hit and Governor Brad Little’s stay at home order was issued, its petition-gathering – which in the normal process has to be done face to face – was blocked, which meant a part of Idaho’s election process also was blocked.

That point, essentially an argument over voting civil rights, went to federal court. Idaho U.S. District Judge B. Lynn Winmill ordered that the state either simply place the proposed initiative on the ballot or allow the group to collect the signatures electronically. The state appealed, and the case with startling speed went to the U.S. Supreme Court. On a 4-2 decision, the court sided with the state, ordering a stay of the Winmill decision.

The Supreme Court, as often happens, didn’t go to the center of the issue – the voters-rights matter – and it did not specifically reverse the Winmill decision, though it may have felt that way. But what’s there is worth considering.

First, the majority decision (written by Chief Justice John Roberts) pointed out that, oddly enough, different federal courts have established different guidelines for what states can and can’t do in initiative procedures (one reason the high court might have granted certiorari – permission to bring this case to it). It said, “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 … 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.”

The Supreme Court didn’t really land on this turf in its Idaho decision, but the majority did focus on the right of the state more than the right of the initiative proponent: “The District Court did not accord sufficient weight to the State’s discretionary judgments about how to prioritize limited state resources across the election system as a whole.”

That’s not an unreasonable point, but it leaves a massive gap in how to review something like this. In her dissent, Justice Sonia Sotomayor zeroed in on “balancing harms to stay applicant against harms to respondent” – in other words, balancing the interests of the state and the initiative backers, rather than simply disregarding the interests of the backers. She acknowledged that allowing the electronic signature would be a burden on the state and counties – and it would be – but she argued it should be considered in context.

Putting a still finer point on it, “The stay granted today puts a halt to their signature-collection efforts, meaning that even if respondents ultimately prevail on appeal, it will be extremely difficult, if not impossible, for them to collect enough qualifying signatures by any reasonable deadline for the November ballot. 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).”

So in balancing the rights of a state government against those of its voters, the Supreme Court’s majority seems to be putting its thumb on the state side of the scale. That may be worth giving some careful thought when you look, as historically we long have, to the nation’s highest court as a protector of the rights of the American people.

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