Massachusetts Supreme Judicial Court weighs injunction request to block VOTES Act

By Colin A. Young

STATE HOUSE, BOSTON, The Supreme Judicial Court heard arguments Wednesday related to the Republican Party’s challenge to the new law making early voting and vote-by-mail permanent features of Massachusetts elections, with attorneys tangling over the power of the Legislature to take action that is not specifically authorized or prohibited in the state Constitution.

The state’s highest court took the case quickly; the law in question was signed by the governor on June 22 and the suit that spurred Wednesday’s hearing was filed the next day. And the court is also expected to rule quickly, since the secretary of state is required to send ballot applications to voters by later this month if the law is deemed suitable.

Republican Party Chairman Jim Lyons, secretary of state candidate Rayla Campbell and others filed the lawsuit seeking to overturn the so-called VOTES Act, which made voting-by-mail permanent in Massachusetts, arguing that it violates the allowances for absentee voting contained in Article 105 of the state Constitution.

That part of the Constitution 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. Lyons and the plaintiffs argue that those three reasons are the only reasons for which absentee voting can be allowed.

“We assert that any kind of absentee or mail-in voting must comply with the strictures of Articles 45, 76 and 105, or else they are on their face outside the authority of the Legislature,” Michael Walsh, a Lynnfield attorney representing Lyons and the plaintiffs, told the SJC. He added, “When Article 105 and its two predecessors say that the Legislature will have the power to do X, they are necessarily saying that there is no power to do anything that is not X.”

In the brief he filed on behalf of the plaintiffs, Walsh was even clearer: “This case is not, substantially, about voting rights but rather about the power of the Legislature to enact the current measures in relation to absentee and early voting.” He added later in the brief, “the Legislature, in the VOTES ACT, clearly wanted to push the envelope of its power.”

Some legal experts and the defendants in the case, however, have argued that mail-in voting is a form of early voting, totally separate from Election Day and absentee voting covered by the Constitution.

“[E]arly voting is a distinct and additional means of voting that stands apart from what is contemplated by Article [105]. The new VOTES Act does not alter the constitutional eligibility for absentee voting,” Attorney General Maura Healey’s office, in a brief filed on behalf of the defendant, Secretary Galvin’s office.

The attorney general’s office said the article of the Constitution cited by plaintiffs “empowers the Legislature to provide for absentee voting for certain categories of voters, but this provision – which applies only to general elections, not primary elections – sets a floor for what the Legislature can do, not a ceiling.”

“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,” Assistant Attorney General Adam Hornstine wrote in the defendant brief.

The motion in play Wednesday was the party’s request for an injunction to block Galvin from mailing out ballot applications to the more than 4.7 million voters in Massachusetts by July 23 and the secretary has asked the SJC rule by that date so he can either mail the applications to comply with the law or avoid having the court rule after the applications are already in the mail.

The SJC moved with unusual expediency to hear the case, with Justice Scott Kafker saying he opted to elevate the case to the full SJC “[d]ue to the significant time constraints in this matter, and because the complaint raises wide-ranging and novel constitutional challenges to the new election law implicating the fundamental right to vote.”

The arguments in the case came on the day that VOTES Act supporters planned to hold a celebratory event outside the State House. The Election Modernization Coalition, which is made up of Common Cause Massachusetts, ACLU of Massachusetts, League of Women Voters of Massachusetts, MassVOTE, the Massachusetts Voter Table, MASSPIRG, and Lawyers for Civil Rights, is scheduled to celebrate “the largest expansion of voting access in Massachusetts in years” at 4 p.m. Wednesday.

Common Cause Massachusetts filed its own amicus brief before the SJC heard the MassGOP’s challenge to the VOTES Act on Wednesday, telling the justices that “[t]he laudable work of the Legislature and Governor Baker to make the franchise more accessible to the Commonwealth’s qualified voters, who are guaranteed the right to vote and free and fair elections by the state Constitution, was well within the scope of Legislative authority.”

With early and mail-in voting options in place in 2020, 3,657,972 votes were cast in the Nov. 3 election, topping the state’s previous record by nearly 300,000 votes and representing roughly 76 percent turnout, Galvin’s office has said. About 42 percent of people voted by mail in 2020 and another 23 percent cast their ballots during early voting.

Another area of the MassGOP’s complaint that justices zoomed in on Wednesday relates to the VOTES Act’s extension of the existing electioneering buffer zone requirements for Election Day polling places to early voting locations during voting hours.

“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,” Walsh 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 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,” he 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.”

Legislative Attempt at Clarity
When the Senate was considering the final version of the bill on June 9, Minority Leader Bruce Tarr sought to ask the SJC to weigh in on the constitutionality of the legislation’s mail-in voting sections. Tarr cast doubt on the legality of the bill, referencing many of the same constitutional provisions that were later cited in Lyons’ complaint.

“The Constitution is explicit here, there is no ambiguity. There are three reasons where we can act to be able to make the kind of changes that are proposed,” Tarr said. “I know the goal is laudable, but I also know that there is official recognition of the need to change the Constitution to be able to undertake the things that are being proposed here, because there was in fact a bill proposed to do that was cosponsored not only by former President Murray of the Senate but also the gentleman who chairs the Committee on Election Laws who produced this conference committee report and, in fact, that bill was cosponsored by our current Senate president, all of whom acknowledged in their filing of that bill that, absent a constitutional change, we could not enact some of the types of measures that are contained in this particular bill.”

Tarr was referring to a 2013 attempt by then-Senate President Therese Murray and others to permanently expand early and absentee voting, which they sought to do by proposing an amendment to the Constitution.

Election Laws Committee Chair Sen. Barry Finegold, who led negotiations on the final version of the VOTES Act for the Senate and cosponsored Murray’s 2013 effort, said he was “confident in the constitutionality of the VOTES Act” but declined to point to any court opinion or ruling that would back up his confidence.

“The Legislature has widespread plenary powers under the Constitution to enact no-excuse early voting, including by mail,” he said. Finegold added, “I do believe under our Constitution we do have this ability to do this, and that is why I’m confident that this will hold up in a court of law.”

Tarr’s request (S 2927) was sent to the Rules Committee, which is given 30 days to consider it. His attempts to suspend the Senate’s rules to waive the 30-day waiting period were unsuccessful; all 37 of the Senate’s Democrats voted not to suspend the rules while the chamber’s three Republicans were in favor.