Supreme Court again splits on coronavirus-related election issue

The justices put on hold a lower-court order that Idaho officials either put on the ballot an education initiative promoted by a group called Reform Idaho or allow the group to gather signatures electronically, although the deadline had passed.

It is unclear exactly how the court’s vote broke down, although at least five of the nine justices had to agree with the action.

Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented. Three justices joined Chief Justice John G. Roberts Jr. in explaining the action. But the order did not state how the other three justices — Clarence Thomas, Stephen G. Breyer and Elena Kagan — voted, which sometimes happens when the court settles an emergency request.

Sotomayor said that her colleagues have become too quick to grant the requests of state officials in such challenges, sometimes even before lower courts had finished their work.

“By jumping ahead of the court of appeals, this court once again forgets that it is ‘a court of review, not of first view,’ ” she wrote, citing court precedent, and “undermines the public’s expectation that its highest court will act only after considered deliberation.”

The U.S. Court of Appeals for the 9th Circuit had refused to put a district judge’s order in the case on hold, but had said it would expedite its consideration of the matter.

But Roberts said the district court did not adequately consider the burdens its order placed on Idaho election officials, who are dealing with other issues involving the pandemic.

“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,” he wrote.

He added: “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 Constitution requires Idaho or any other state to provide for ballot initiatives. And the claims at issue here challenge the application of only the most typical sort of neutral regulations on ballot access.”

In this election year, the court is increasingly being called upon to decide election issues related to the pandemic. The conservative justices have been in the majority as the court in most cases has sided with state officials when they ask for stays from lower court decisions they don’t like.

Sotomayor said the court has lowered its standards for when to intervene.

“Although an applicant seeking a stay pending appeal ‘has an especially heavy burden,’ this court has begun to grant such stays with notable frequency,” she said, quoting the court’s past requirements for emergency action.

“It is beginning to look like such an applicant has nearly no burden at all.”

The case is Little v. Reclaim Idaho.