SJC hears arguments on whether to allow permanent voting by mail

Republicans challenged new law as unconstitutional

THE SUPREME JUDICIAL COURT is poised to decide whether to overturn the new law allowing Massachusetts residents to vote by mail for any reason.

Gov. Charlie Baker on June 22 signed the VOTES Act, a bill passed by the Democratic-led Legislature allowing no-excuse mail-in voting along with expanded early voting, electronic voting for people with disabilities and overseas military voters, and other changes aimed at making it easier to vote.

A group of Republicans immediately filed a lawsuit seeking to overturn the law. They include Massachusetts Republican Party Chair Jim Lyons, Secretary of the Commonwealth candidate Rayla Campbell, congressional candidate Robert May, Republican State Committee member Evelyn Curley, and Raymond Xie, a member of the ballot committee seeking a referendum to overturn the law giving driver’s licenses to immigrants without legal status.

The case is time-sensitive since Secretary of the Commonwealth William Galvin is required to send out ballot applications for the September primary to all voters by July 23. The Supreme Judicial Court heard oral arguments via videoconference on Wednesday.

The state constitution lays out reasons why someone can vote absentee – they are out of town, have a religious belief that prevents them from voting on Election Day, or have a disability. The central argument in this case relates to whether no-excuse mail-in voting circumvents the constitution.

The Republicans argue that early voting by mail allows what is essentially absentee voting for reasons not allowed by the Constitution. “Faithful adherence to [the Constitution’s] words and principles are rigorously required and social policy, even beneficial and useful must bend to it,” the complainants wrote in a court brief.

The Republicans’ brief traces the requirement for personal presence at the polls from the Provincial Charter that governed the Massachusetts Bay Colony in the 1600s through the 1917 constitutional amendment that authorized absentee voting. They argue that any argument that early voting by mail is legally distinct from absentee balloting is “nothing more than a legal slight of hand, to pretend that constitutional limitations do not apply simply because of a terminology change.”

The Republicans’ brief says Attorney General Maura Healey, whose office is representing Galvin, “must choose between Scylla and Charbidis,” the lesser of two evils. If early voting is not absentee voting, the Legislature has no authority to allow it, since the Constitution sets the date for Election Day. If it is absentee voting, it is constrained by the circumstances under which absentee voting is allowed.

Michael Walsh, an attorney representing the Republicans, argued in court that the 1917 constitutional convention that adopted absentee voting made clear that any mail-in voting must comply with its requirements.

But several justices questioned his analysis. Justice Scott Kafker said that convention featured a debate about selective treatment for different groups, such as whether servicemen or laborers deserved the right to vote absentee. “This enhances for everyone the right to vote equally,” Kafker said.

Justice David Lowy said at the 1917 constitutional convention, “We have no reference to early voting, we have no reference to mail-in voting.” He questioned Walsh on whether that authority is then left to the Legislature.

Walsh responded that many constitutional amendments, on issues from parkland protection to zoning districts, give the Legislature more power – implying that lawmakers have narrow authority without an amendment.

Galvin’s office, in a brief written by attorneys from Healey’s office, argues that the reasons laid out in the Constitution for allowing absentee voting “sets a floor for what the Legislature can do, not a ceiling.” He suggested that lawmakers can expand voting opportunities beyond those reasons. “The Legislature retains the broad power to go above this floor, and it appropriately exercised this broad power when it expanded the ways in which voters could exercise their fundamental right to vote by making permanent an expanded version of early voting by mail,” Galvin’s brief states.

The brief argues that early voting by mail is different from absentee voting, and the Constitution “says nothing whatsoever about early voting, a different species of balloting statutorily created by the Legislature.”

“The VOTES Act reflects the most recent, reasoned judgment of the Legislature on how best to regulate the manner of elections in the Commonwealth while ensuring that qualified voters can securely, efficiently, and safely exercise the franchise,” Galvin’s attorneys wrote in the court brief. Galvin and Healey are Democrats.

Assistant Attorney General Adam Hornstine argued in court that the Legislature has “broad power to act absent any specific circumscription of that authority by the Constitution.”

“Early voting by mail wasn’t on the minds of the framers during the 1917 constitutional convention,” Hornstine said. “Though there may be practical similarities between absentee voting and early voting by mail, the two have a different origin, the two have a different genesis.” Hornstine said the Constitution set a floor for absentee voting but “didn’t say the Legislature couldn’t go beyond that to allow more people to participate in a free, fair, and orderly election in the commonwealth.”

Kafker questioned that interpretation, noting, “It doesn’t say it sets a minimum, that’s your gloss.”

The court will also consider whether early and mail-in voting should be allowed for primaries, the rules for which are not laid out in the Constitution. Kafker sounded skeptical that any argument can be made for not allowing early and mail-in voting for primaries, telling Walsh bluntly, “Your brief doesn’t make any sense on this point.”

Justices sounded more open to reconsidering other aspects of the law, including a provision that removes consideration of party affiliation from the appointment of election officers. Now, election officers must be appointed to preserve equal representation of political parties. The new law has election officers appointed without regard to party affiliation during a six-week period before the election – but preserves consideration of party affiliation before that time and when a worker is replaced on Election Day. Kafker questioned why it makes sense to consider party affiliation early in the process and on Election Day, but not for six weeks in the middle.

Hornstine said lawmakers tried to balance the interests of keeping party balance and ensuring that polling places, particularly in small towns, are fully staffed.

The lawsuit also asks the court to consider whether a ban on electioneering – things like waving signs or wearing shirts with messages – near a polling place unconstitutionally infringes on free speech when it is expanded to cover early voting locations, which includes town halls, for weeks at a time. “What was once a carefully tailored, limited application, limited duration restriction becomes a gargantuan first-amendment black-out period for weeks at a time over the central halls of municipal government,” the Republicans wrote in their brief.

Galvin’s brief defends the buffer zones. “Massachusetts has a compelling interest in the orderly administration of elections, which includes…ensuring that voters can cast their votes free from intimidation and fraud,” his brief writes.

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Shira Schoenberg

Reporter, CommonWealth

About Shira Schoenberg

Shira Schoenberg is a reporter at CommonWealth magazine. Shira previously worked for more than seven years at the Springfield Republican/MassLive.com where she covered state politics and elections, covering topics as diverse as the launch of the legal marijuana industry, problems with the state's foster care system and the elections of U.S. Sen. Elizabeth Warren and Gov. Charlie Baker. Shira won the Massachusetts Bar Association's 2018 award for Excellence in Legal Journalism and has had several stories win awards from the New England Newspaper and Press Association. Shira covered the 2012 New Hampshire presidential primary for the Boston Globe. Before that, she worked for the Concord (N.H.) Monitor, where she wrote about state government, City Hall and Barack Obama's 2008 New Hampshire primary campaign. Shira holds a master's degree from Columbia University's Graduate School of Journalism.

About Shira Schoenberg

Shira Schoenberg is a reporter at CommonWealth magazine. Shira previously worked for more than seven years at the Springfield Republican/MassLive.com where she covered state politics and elections, covering topics as diverse as the launch of the legal marijuana industry, problems with the state's foster care system and the elections of U.S. Sen. Elizabeth Warren and Gov. Charlie Baker. Shira won the Massachusetts Bar Association's 2018 award for Excellence in Legal Journalism and has had several stories win awards from the New England Newspaper and Press Association. Shira covered the 2012 New Hampshire presidential primary for the Boston Globe. Before that, she worked for the Concord (N.H.) Monitor, where she wrote about state government, City Hall and Barack Obama's 2008 New Hampshire primary campaign. Shira holds a master's degree from Columbia University's Graduate School of Journalism.

The court will also consider the legality of letting disabled and overseas military voters cast ballots electronically, and the issue of “zombie votes,” when a voter casts a ballot early, then dies before Election Day.