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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 petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.

CHIEF JUSTICE ROBERTS, with whom JUSTICE ALITO,

JUSTICE GORSUCH, and JUSTICE KAVANAUGH join, concurring 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 neither 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 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 (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 (CA6 2020) (per curiam); Angle v. Miller, 

673 F. 3d 1122, 1133 (CA9 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 (CA7 2018); Initiative 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 pandemic, the Circuits have applied their conflicting frameworks to reach predictably contrary conclusions as to 

whether and to what extent States must adapt the initia-
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ROBERTS, C. J., concurring

tive process to account for new obstacles to collecting signatures. 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 Assistance 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 Constitution 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 application 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, nondiscretionary restrictions are almost certainly justified by the 

important regulatory interests in combating fraud and ensuring 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 verification 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 absent a stay. Right now, the preliminary injunction disables 

Idaho from vindicating its sovereign interest in the enforcement 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 significant, 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 challenges in the face of the pandemic. The Governor and Secretary of State here, for example, have suspended some limits 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 requests, the county clerks must now also learn, under extraordinary 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 prioritize limited state resources across the election system as a 

whole.

The pending appeal in the Ninth Circuit does not eliminate the present strain imposed by this structural injunction 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 initiative 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. Lamone, 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 extraordinary given the extent to which the District Court recast 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 accommodate delays and risks introduced by the COVID–19 

pandemic by extending the deadline for accepting ballot-initiative signatures and permitting digital collection of signatures. The State claims that it requires immediate intervention 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. 

—————— 1Although an applicant seeking a stay pending appeal “has an especially 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 National 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, almost a month before Idaho’s Secretary of State must certify 

ballot questions to county clerks (on September 7), and almost three months before election day. If the District 

Court’s preliminary injunction turns out to have been improper, Idaho will still have time to omit respondents’ initiative 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 chambers) (even where an injunction bars enforcement of a 

State’s laws, “sound equitable discretion” requires balancing harms to stay applicant against harms to respondent). 

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.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 interest in vacatur of the preliminary injunction should be 

—————— 2As 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 “‘unnecessar[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 emergency 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 reverse the (hypothetical) judgment below, this Court takes 

the extraordinary step of staying the District Court’s preliminary 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 application) (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 consideration 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 instance.” 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.