Universal mail-in balloting and early voting violate the Massachusetts Constitution, so more than 2 million of the 3.6 million votes case in the state during the November general election should be thrown out, five Republican candidates say in a new federal lawsuit.
The plaintiffs are asking a federal judge to decertify the results of all federal, state, and local races in the November 3 general election in Massachusetts.
The five GOP candidates, who lost their races to Democrats last month, say the Massachusetts Legislature has no authority under the state constitution to allow absentee ballots to be cast unless voters say they plan to be away, have a physical disability, or have a religious conflict with voting on election day.
Even so, the state Legislature passed a bill providing for mail-everybody-a-ballot voting and early voting in early July 2020, and Governor Charlie Baker signed it. (It’s Massachusetts House Bill 4820.) The statute does not require voters to have an excuse in order to vote by mail.
“This Act is the most expansive and fundamental change to the Massachusetts election code, implemented illegally, to date,” the complaint states.
As the complaint notes, the 105th amendment to the Massachusetts Constitution (known as Article CV) states in part:
The general court shall have power to provide by law for voting, in the choice of any officer to be elected or upon any question submitted at an election, by qualified voters of the commonwealth who, at the time of such an election, are absent from the city or town of which they are inhabitants or are unable by reason of physical disability to cast their votes in person at the polling places or who hold religious beliefs in conflict with the act of voting on the day on which such an election is to be held.
The “general court” is the Massachusetts Legislature. The plaintiffs argue that since the state constitution spells out the conditions when a voter can vote without going to the polls on election day, the state Legislature has no authority to expand the conditions without changing the constitution.
The complaint also notes that several Democratic state legislators in 2019 sponsored a proposed amendment to the state constitution that would have allowed for universal mail-in voting, but the amendment drive did not succeed.
State legislators could have complied with the constitution this past election cycle by providing for expanded polling locations on election day to allow for social distancing, and they could have encouraged people concerned about coronavirus to apply for an absentee ballot under a medical excuse, the complaint argues.
John Paul Moran, a Republican challenger of U.S. Representative Seth Moulton in the Massachusetts Sixth Congressional District in the northeastern part of the state, filed the complaint Monday, December 7 in U.S. District Court in Boston on behalf of himself and four other Republican candidates.
Two of the other plaintiffs ran for Congress: Caroline Colarusso of Stoneham, who ran in the Fifth Congressional District west and northwest of Boston (against U.S. Representative Katherine Clark (D-Melrose)); and Helen Brady of Concord, who ran in the Ninth Congressional District on the South Shore, part of the South Coast, and Cape Cod and the islands (against U.S. Representative William Keating (D-Bourne)).
Two ran for state representative: Ingrid Centurion, who ran in the Thirteenth Middlesex District; and Craig Valdez, who ran in the Fourth Plymouth District.
The lawsuit complaint calls early voting “an unfair and unequal incumbent protection scheme,” since it limits the amount of time after the September primary that challengers can introduce themselves to voters before early voting begins.
Jim Lyons, chairman of the Massachusetts Republican Party, told New Boston Post on Tuesday that several GOP candidates are seeking information from town clerks and city clerks about how mail-in balloting was conducted in the general election cycle this fall. He said he is concerned about how the process worked and wants to find out more about how local clerks went about verifying signatures of voters for mail-in ballots as well as other aspects.
As for Moran’s lawsuit, Lyons said in a telephone interview: “I know that he’s raising a serious issue. What we have here in mail-in voting is something that really has no guidelines, no parameters, and no historical data. … I think they’re accentuating a very important issue that we’re all concerned about.”
Even though the complaint largely concerns the state constitution, the federal court has jurisdiction, the complaint states, because the election included federal offices (president, vice president, and Congress) and the federal constitution gives state legislatures the power to run their own elections – which must, the complaint states, be in accord with the state constitution.
The complaint also argues that the GOP candidates were denied their equal protection of the law guaranteed by the Fourteenth Amendment of the U.S. Constitution because their candidacies were compromised by what the plaintiffs maintain is an unconstitutional balloting system.
The complaint also challenges the reliability of Dominion Voting Systems machines and software, which the plaintiffs say are used in 255 of the 351 cities and towns in Massachusetts. Republicans elsewhere in the country have also challenged the reliability of the machines, suggesting that they helped contribute to President Donald Trump’s apparent defeat in November.
The Republican candidates are asking for the state’s election results to be decertified and for a court order stopping state officials from awarding the state’s electoral votes on Monday, December 14 as currently scheduled. They also want an investigation, independent audit, and recount by hand of all ballots, and for all ballots cast in early voting and by what the complaint calls “no excuse” mail-in balloting to be thrown out.
The lawsuit names as defendants the Commonwealth of Massachusetts, Governor Baker, and Massachusetts Secretary of State William Galvin.
A spokesman in the governor’s press office could not be reached for comment Tuesday afternoon.
A spokesman for Galvin, Debra O’Malley, declined comment Tuesday, noting that the lawsuit is pending.
