Massachusetts Supreme Judicial Court Upholds Mail-in, Early Voting Law

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By Colin Young
State House News Service

With the Massachusetts Supreme Judicial Court having rejected his challenge to the new law making early voting and vote-by-mail permanent features of elections here, MassGOP chairman James Lyons said Monday that he plans to appeal to the U.S. Supreme Court to “provide relief to prevent a constitutional travesty.”

Lyons and a handful of Republican candidates filed a lawsuit last month seeking to overturn the so-called VOTES Act (H.805/S.2545), which made voting-by-mail permanent in Massachusetts. The plaintiffs argued last week before the state Supreme Judicial Court that the VOTES Act, which codified pandemic-era policies that proved popular with voters, violates the allowances for absentee voting contained in Article 105 of the Massachusetts Constitution and that Secretary of State William Galvin should be blocked from sending mail-in ballot applications to the more than 4.7 million voters in Massachusetts.

In June, the voting reforms were enacted on a 37-3 vote in the Senate and by a 126-29 margin in the House.

The state’s highest court ruled in an order Monday morning, July 10 that “judgment shall enter in the county court for the Secretary on all claims in the plaintiffs’ complaint” and that “the plaintiffs’ request to enjoin the Secretary from putting the VOTES act into effect is denied.” The ruling clears the way for Galvin to begin sending ballot applications by the July 23 deadline called for in the law, though he said he intends to beat the deadline.

“We proved here in Massachusetts that election reforms that empower voters work. We demonstrated that with the success of our turnout numbers but also by the transparency by which we conducted those elections. The success beyond any doubt of those elections, the integrity of the elections that we held, the absence of controversy about ballots being counted — all of that proves that the reforms and election laws that empower voters, that include voters, works,” Galvin said at the Massachusetts State House on Monday, noting that the deadline for voters to apply for a mail-in ballot for the September 6 primaries will be August 29. He added, “We hope to lead the nation. We hope that, as we regretfully see around the country the pendulum swing the other way — voters being deprived of their rights, limited opportunities — is the wrong way to go. The right way to go is the way that we’re going.”

Lyons and the GOP pointed to part of the Massachusetts Constitution that explicitly allows for absentee voting for three reasons — when a voter is going to be out of town for Election Day, has a disability, or has a religious-based conflict with Election Day — and argued those were the only allowable reasons a voter should vote by mail. The defendants and others, however, argued that mail-in voting is a form of early voting, totally separate from Election Day and absentee voting covered by the state constitution.

The state Supreme Judicial Court’s order did not come with the usual explanation of the justices’ thinking, so it is not known exactly how the justices came down on that question. The court said it wanted to issue the order quickly because the deadline for Galvin to mail the applications is fast approaching and added that a complete opinion detailing the court’s thinking would “follow in due course.”

“The presses are rolling to put out the applications,” Galvin said Monday. “We queued up everything we need to do. We expect the presses to be rolling … today. It’s a huge mailing, in excess of 4 million pieces.” He added, “We’re doing it as rapidly as possible.”

Lyons said the Massachusetts Republican Party appreciates the consideration of the seven Supreme Judicial Court justices, all of whom were nominated to the court by Governor Charlie Baker, a Republican. But he also noted that the case “presented significant issues of both state and federal law.”

“With respect, however, [the SJC justices] are the final arbiters of state law. Their decisions must also conform to the federal constitution. Having conferred with counsel, we will be seeking emergency relief from the U.S. Supreme Court because of federal law issues presented in the VOTES Act, including the first amendment black-out posed by the electioneering ban, the differential treatment between absentee voters and early voters, and the enshrining of the partisan selection of election officials into state law,” Lyons said.

The VOTES Act’s extension of the existing electioneering buffer zone requirements for Election Day polling places to early voting locations during voting hours was one area of the MassGOP’s complaint that justices zoomed in on during last week’s oral arguments.

“The electioneering ban … which before only applied to polling places on the narrow occasion of Election Day, now covers town hall for weeks at a time. It is by definition no longer a narrowly-tailored impingement upon free speech,” Michael Walsh, a Lynnfield attorney representing Lyons and the plaintiffs, wrote in his brief. “Since the ban is now not restricted to a single-use facility, the geographic location conscripted for 12 hours of polling on election day, it restricts all manner of access to the government.”

Justice Scott Kafker took note of the expansion of the times when the 150-foot buffer zones are in effect and what that could mean for the expression of rights by citizens at places like city or town hall when those facilities are functioning as early voting locations.

“I’m just trying to understand,” Kafker said. “So we’ve got these smaller towns in Massachusetts where town hall is, basically, the single public forum … and it’s going to be shut down for two weeks or so.”

Getting the matter before the U.S. Supreme Court will be no small task for Lyons and the Republican Party. To request a stay in an election law case, someone must file an application that goes before a circuit justice who can grant or deny the request on his own, or send the request to the full court for the justices to vote on, according to an explainer published by SCOTUSBlog.

If an application gets to the full court, justices consider whether they would be likely to take the case up on its own merits, whether there would be a “fair prospect” that they would overrule the lower court, and whether the lower court ruling would cause permanent harm if allowed to remain in effect, SCOTUSBlog said. At least five justices would need to be in favor for the court to grant a stay.

The legislative leaders who shepherded the VOTES Act through their chambers said repeatedly that they were confident it would withstand a legal challenge, though they often said so without getting into the reasons for their confidence.

House Speaker Ronald Mariano said Monday afternoon that he was not at all surprised with the state Supreme Judicial Court’s ruling.

“We did a very good bill and we were confident that we would be successful in any challenge. That’s not a surprise,” Mariano said.

Asked about Lyons’ last declaration that he would attempt to bring the issue before the U.S. Supreme Court, the speaker said, “They can do whatever they want.”


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