THE SUPREME JUDICIAL POWER The court is set to decide whether to strike down the new law allowing Massachusetts residents to vote by mail for any reason.
On June 22, Governor Charlie Baker signed the VOTES Act, a bill passed by the Democratic-led Legislature allowing no-excuse mail-in voting as well as expanded early voting, electronic voting for people with disabilities. and overseas military voters, and other changes aimed at making voting easier.
A group of Republicans immediately filed a lawsuit to overturn the law. These include Massachusetts Republican Party Chairman 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 polling committee calling for a referendum to overturn the law granting driver’s licenses to immigrants without legal status.
The matter is urgent as Commonwealth Secretary William Galvin is required to send ballot applications for the September primary to all voters by July 23. The Supreme Judicial Court heard oral arguments by videoconference on Wednesday.
The state constitution spells out the reasons someone can vote by mail — 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 concerns whether unapologetic postal voting circumvents the constitution.
Republicans argue that early mail-in voting enables what is essentially mail-in voting for reasons not permitted by the Constitution. “Faithful respect for [the Constitution’s] words and principles are rigorously demanded and social policy, even beneficial and useful, must comply,” the plaintiffs wrote in a brief.
The Republicans’ brief traces the requirement for personal attendance at the polls from the Provincial Charter that governed the Massachusetts Bay Colony in the 1600s to the 1917 Constitutional Amendment that allowed mail-in voting. They argue that any argument that early mail-in voting is legally separate from mail-in voting is “nothing more than legal sleight of hand, to claim that constitutional limitations do not apply simply because of a change in terminology”.
The Republicans’ brief says Attorney General Maura Healey, whose office represents Galvin, “must choose between Scylla and Charbidis,” the lesser of two evils. If early voting is not mail-in voting, the legislature has no power to authorize it, since the Constitution sets the date for election day. If it is a vote by correspondence, it is limited by the circumstances in which the vote by correspondence is authorized.
Michael Walsh, a lawyer representing Republicans, argued in court that the 1917 constitutional convention that adopted mail-in voting made it clear that any mail-in ballot must conform to its requirements.
But several judges questioned his analysis. Justice Scott Kafker said the convention included a debate about the selective treatment of different groups, such as whether the military or workers deserved the right to vote by mail. “It improves everyone’s right to vote equally,” Kafker said.
Judge David Lowy said at the 1917 Constitutional Convention, “We have no reference to early voting, we have no reference to voting by mail.” He asked Walsh whether that authority is then left to the legislature.
Walsh responded that numerous constitutional amendments, on issues ranging from park protection to zoning districts, gave more power to the Legislative Assembly — implying that lawmakers have narrow authority without amendment.
Galvin’s office, in a brief by attorneys from Healey’s office, argues that the reasons set out in the Constitution for allowing mail-in voting “set a floor for what the legislature can do, not a ceiling.” He suggested lawmakers could expand voting opportunities beyond those reasons. “The legislature retains broad power to go above that floor, and it appropriately exercised that broad power when it expanded the means by which voters could exercise their basic right to vote by making permanent a version extent of early voting by mail,” Galvin said. States.
The brief argues that early voting by mail is different from voting by mail, and the Constitution “says nothing at all about early voting, another species of ballot created by statute by the legislature.”
“The VOTES Act reflects the most recent reasoned judgment of the Legislative Assembly on how best to regulate the conduct of elections in the Commonwealth while ensuring that qualified voters can exercise the right to vote safely, efficiently and safely. safety,” Galvin’s attorneys wrote in the court filing. . Galvin and Healey are Democrats.
Assistant Attorney General Adam Hornstine argued in court that the Legislature had “broad power to act in the absence of any specific constituency of such authority by the Constitution.”
“Early voting by mail was not on the minds of the drafters at the 1917 constitutional convention,” Hornstine said. “While there may be practical similarities between mail-in voting and mail-in advance voting, the two have a different origin, the two have a different genesis.” Hornstine said the Constitution sets a floor for absentee voting, but ‘did not say the Legislature could not go beyond that to allow more people to participate in a free, fair and orderly election. in the Commonwealth”.
Kafker questioned this interpretation, noting, “He doesn’t say he sets a minimum, it’s your gloss.”
The court will also consider whether early and mail-in voting should be allowed for the primaries, the rules for which are not spelled out in the Constitution. Kafker seemed skeptical that any argument could be made for not allowing early and mail-in voting for the primaries, telling Walsh bluntly, “Your memoir makes no sense on this point.”
Justices seemed more willing to reconsider other aspects of the law, including a provision that removes consideration of party affiliation from the appointment of election officials. Henceforth, election officials must be appointed to preserve equal representation of political parties. The new law provides for the appointment of election officials without regard to party affiliation for a period of six weeks before the election – but preserves the consideration of party affiliation before that date and when a worker is replaced on polling day. Kafker wondered why it made sense to consider party affiliation early in the process and on Election Day, but not for six weeks in the middle.
Hornstine said lawmakers have tried to balance the interests of maintaining party balance and ensuring polling places, especially in smaller towns, are fully staffed.
The lawsuit also asks the court to consider whether a ban on campaigning — things like waving signs or wearing shirts with messages — near a polling place unconstitutionally infringes on free speech when it does. is extended to cover early voting locations, which include town halls, for weeks at a time. “What was once a carefully tailored limited enforcement, time-limited restriction becomes a gargantuan First Amendment blackout period for weeks at a time in the central halls of municipal government,” the Republicans wrote in their brief.
Galvin’s brief defends buffer zones. “Massachusetts has a compelling interest in the orderly administration of elections, which includes…ensuring that voters can vote without intimidation or fraud,” its memoir wrote.
The court will also consider the legality of letting voters with disabilities and foreign military personnel vote electronically, and the issue of “zombie votes,” when a voter votes early and then dies before Election Day.