BOSTON (State House News Service) — Plaintiffs raised voting rights issues Monday in calling for a 10-day extension of the period allotted for counting mail-in ballots, but the state's top elections official argued the relief sought to count primary ballots would interfere with people's rights to receive general election ballots.
Lawyers presented oral arguments Monday before the Supreme Judicial Court in a lawsuit brought by Congressional candidate Becky Grossman, who is asking the high court to order Secretary of State William Galvin to direct local election officials to accept and count all mail-in ballots postmarked by Sept. 1.
"There's no need to tell Massachusetts voters who duly complied with the deadlines for requesting mail-in ballots to protect their health and that of their loved ones, as the secretary effectively does, let them eat cake," said Jeffrey Robbins, the lawyer representing Grossman's campaign. "The fact is that there are significant communities, ones that have been particularly ravaged by this disease, the elderly, communities of color, other disabled and all sorts of others who either cannot do this or who in any event should not need not be forced to do this in order to exercise their constitutional rights."
Assistant Attorney General Anne Sterman represented the secretary of state's office Monday and said the extension would create several challenges for the office including having enough time to deal with potential calls for recounts, resolving objections to candidate placement on the general election ballot, and abiding by a 45-day federal deadline to send ballots to residents and military personnel living overseas.
"The reliefs that the petitioners seek would prevent the secretary from complying with the federal law requirement to send ballots to military and overseas voters by September 19, and would interfere with the ability to administer the general election," Sterman said. "Adopting the remedy proposed by the petitioners would significantly interfere with opportunities for voter participation in the general election."
At least 1 million registered voters in Massachusetts requested mail-in ballots this year, elevating the importance of counting the mail vote at a time when controversy is swirling about U.S. Postal Service operations and whether the agency will be able to move ballots to their destinations in a timely manner.
Under a state law approved earlier this year to widen voting options during the pandemic, voters have until Wednesday, Aug. 26 to return vote-by-mail ballot applications, and local election officials must receive the actual mail-in ballots by Sept. 1 to count them. The plaintiffs say that window is too short.
Robbins argued that if the deadline to count mail-in ballots is not extended, voters across the state will experience disenfranchisement. Speaking before the court, Robbins referred to a previous lawsuit where the Supreme Judicial Court reduced the signature-gathering requirements for candidates running in 2020 filed in part by U.S House Candidate Robbie Goldstein.
"What we are submitting is, as we think the courts have held, and this court has held, that where the Constitutional burden is severe, is onerous, as this one is more so than in the Goldstein case, where from memory, the court applied a strict scrutiny test, that ... strict scrutiny is what is required," Robbins said.
Sterman said the details and context of Grossman's suit are not similar to the Goldstein case, "where the Legislature had not yet acted to adapt the statutory rules to take account for the pandemic."
"Rather here, they have made significant efforts to expand voter options. But while expanding this menu of voting options, the Legislature, knowing all the things that need to happen between the nominating primary and the federally imposed September 19th UOCAVA deadline to transmit ballots to military and overseas voters, made a judgment call that ballots need to be received by September 1 in order to count," Sterman said. "This is because the secretary needs to allow time for recounts, objections, and other safeguards before we can know for sure who was nominated at the primary and the secretary can move to doing what needs to be done to have an orderly election in November."
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Residents can vote-by-mail, take advantage of in-person early voting periods before the primary and general election, or vote in-person on election day. In many municipalities, voters can also opt to deliver ballots at drop boxes, typically situated in a local town or city hall. Sterman said even voters who wait until the very last moment to submit a non-in-person ballot will not be disenfranchised.
"That person may not have the entire menu of options available to them," she said. "But they absolutely have opportunities to make sure their votes will be counted in this year's election."
In their questioning, some of the justices looked for more clarification on deadlines to return ballots.
Justice Elspeth Cypher asked Robbins whether voters could have their returned ballot applications before the Aug. 26 deadline and if there were any other voting rights cases that would help determine the standard of review justices should apply when reviewing the lawsuit.
"They can do it sooner," Robbins said. "The problem is that if they do it on the 26th, the 25th, the 24th, the 23rd, or last week, the Postal Service and the secretary are stipulating that it may take them a week before … the ballot itself is returned from the local office to the voter."
Another question from Justice Barbara Lenk focused on how a voter could know concretely that their ballot would be postmarked by Sept. 1 and sought further explanation of the definition of postmarking a piece of mail.
"How can we ever be sure that something's going to be postmarked on a certain day," she asked Robbins. "Let's say I have a ballot, and I want to hand it to my mailman. How do I know it's gonna be postmarked as of that day?"
Robbins said there is no guarantee that a ballot would be postmarked on the same day it is placed in the mail. Postmarking, Robbins said, means a piece of mail is received and processed by the Postal Service.
The vote-by-mail law in question has already been the subject of public disagreements and at least one lawsuit before the Supreme Judicial Court. Voting reform advocates took Galvin to court on July 17 in an attempt to force the state's top election official to send out mail-in ballot applications by July 15, a date Galvin said he wouldn't meet unless the Legislature provided him funding.
The secretary's office came to an agreement with the governor to advance funding included in a $1.14 billion COVID-19 supplemental budget to move forward with the mailing. The lawsuit was filed by Common Cause Massachusetts and seven nonwhite voters.
By Chris Van Buskirk, State House News Service
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