Alliance for Retired Americans v. Secretary of State , 2020 ME 123 ( 2020 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2020 ME 123
Docket: Ken-20-262
Argued: October 14, 2020
Decided: October 23, 2020
Panel: MEAD, JABAR, HUMPHREY, HORTON,* and CONNORS, JJ.
Majority: MEAD, HUMPHREY, HORTON, and CONNORS, JJ.
Dissent: JABAR, J.
ALLIANCE FOR RETIRED AMERICANS et al.1
v.
SECRETARY OF STATE et al.2
MEAD, J.
[¶1] On June 24, 2020, two organizations, the Alliance for Retired
Americans and Vote.org, and two Maine residents, Doug Born and Don Berry
(collectively ARA), filed a complaint in the Superior Court (Kennebec County)
against Maine’s Secretary of State and Attorney General (collectively the
Secretary) seeking a declaration that, inter alia, (1) the statutory deadline
established by 21-A M.R.S. §§ 626(2), 755 (2020) for receiving absentee ballots
*
Although not available at oral argument, Justice Horton participated in the development of this
opinion. See M.R. App. P. 12(a)(2) (“A qualified Justice may participate in a decision even though not
present at oral argument.”)
1 On September 4, 2020, the trial court granted American Civil Liberties Union of Maine
Foundation and Maine Conservation Voters leave to file an amici curiae brief in support of the
plaintiffs. We have also done so and allowed amici to participate at oral argument.
2 On August 21, 2020, the trial court granted intervenor-defendant status to Donald J. Trump for
President, Inc.; Republican National Committee; National Republican Senatorial Committee; and
Republican Party of Maine. See M.R. Civ. P. 24(b). Intervenors filed a brief and participated at oral
argument in this appeal.
2
in an election; and (2) statutory provisions governing the validation and
rejection of absentee ballots, see 21-A M.R.S. §§ 756(2), 759(3), (5), 762 (2020),
violate the United States and Maine Constitutions. See 14 M.R.S. § 5954 (2020).
The complaint asked the court to enjoin the Secretary from “rejecting ballots
that are postmarked on or before Election Day and arrive at the election office
within a minimum of ten days after Election Day” and “rejecting absentee
ballots of otherwise eligible Maine voters without giving the voter notice and
an opportunity to cure their ballot or verify their identity.”
[¶2] Forty-four days later, on August 7, 2020, ARA moved for a
preliminary injunction granting the relief requested in its complaint. Following
a hearing and oral argument on September 21-22, 2020, the court (Stokes, J.)
denied the motion in a twenty-eight-page order, from which ARA appeals. After
expedited briefing and oral argument in this Court, we affirm.
I. DISCUSSION
A. Standing and Justiciability
1. Standing
[¶3] No party has raised any issue as to ARA’s standing, but we may raise
the issue sua sponte as a prudential matter.3 See Blanchard v. Town of
3 We have said that
3
Bar Harbor, 2019 ME 168, ¶ 8, 221 A.3d 554; Lindemann v. Comm’n on
Governmental Ethics & Election Pracs., 2008 ME 187, ¶ 8, 961 A.2d 538. We
agree with the parties’ position at oral argument that standing presents no
prudential obstacle in the “unique context” of a pandemic in which this case
arises, Lindemann, 2008 ME 187, ¶ 8, 961 A.2d 538—a context that all Maine
people fervently hope will never recur—especially given that the Maine
Constitution affords specific protection to the right to vote by absentee ballot
and the right to safety, see infra ¶¶ 22, 24, and given that the Alliance’s
membership consists of retired persons who, as a group, are older, more at risk
from the pandemic than younger persons, and more likely to vote by absentee
ballot for safety reasons.
2. Justiciability
[¶4] “[A]n order granting or denying a motion for a preliminary
injunction is not a final judgment and generally is not an action from which we
[i]n Maine, standing jurisprudence is prudential, rather than constitutional. Standing
is a threshold issue and Maine courts are only open to those who meet this basic
requirement. While there is no set formula for determining standing, a court may
limit access to the courts to those best suited to assert a particular claim. In addition,
the question of whether a specific individual has standing is significantly affected by
the unique context of the claim.
Lindemann v. Comm’n on Governmental Ethics & Election Pracs., 2008 ME 187, ¶ 8, 961 A.2d 538
(citation and quotation marks omitted).
4
will entertain an appeal.” Sanborn v. Sanborn, 2005 ME 95, ¶ 4, 877 A.2d 1075.
Accordingly, ARA bears the burden of demonstrating that an exception to the
final judgment rule applies before we will reach the merits of the appeal. See
Salerno v. Spectrum Med. Grp., P.A., 2019 ME 139, ¶ 7, 215 A.3d 804. As with the
standing issue discussed supra, no party has raised the issue of justiciability.
[¶5] We conclude that the impending election and corresponding
deadline for the receipt of absentee ballots are sufficient to invoke the “death
knell” exception to the final judgment rule. That exception “justifies
consideration of issues raised on an interlocutory appeal only if awaiting a final
judgment will cause substantial rights of a party to be irreparably lost. A right
is irreparably lost if the appellant would not have an effective remedy if the
interlocutory determination were to be vacated after a final disposition of the
entire litigation.” Id. ¶ 8 (alteration and quotation marks omitted).
[¶6] The exception applies here because once the November election is
held, the claimed injury to Born and Berry’s constitutional right to vote—which,
as discussed infra is specific to this pandemic-affected election cycle—cannot
be repaired, even if they eventually prevail on their complaint for declaratory
judgment after the election.
5
[¶7] We reach the merits notwithstanding our decision in Crafts v. Quinn,
482 A.2d 825 (Me. 1984), where, in a challenge to statutory nomination petition
requirements, we noted that “[a]t first glance” the death knell exception “might
seem to apply,” because there, as here, were we “to require a final disposition
by the Superior Court before we would entertain an appeal, the election would
undoubtedly have come and gone before review in this [C]ourt would be
available.” Id. at 827-828. We nonetheless dismissed the appeal, in part due to
the plaintiffs’ lack of diligence in pursuing their claim, noting that it would be
“anomalous” that their failure to pursue their rights promptly should create a
new benefit for them, i.e., interlocutory appellate review. Id. at 828.
[¶8] This due diligence requirement resonates particularly strongly in
the context of a challenge to existing election laws raised shortly before an
election is scheduled to take place. See Jones v. Sec’y of State, 2020 ME 117, ¶ 4,
--- A.3d --- (“there is a strong public interest in not changing the rules for voting
at this late time”) (citing Purcell v. Gonzalez, 549 U.S. 1, 4-6 (2006)). Here, the
plaintiffs filed their complaint on June 24, 2020, although the pandemic
emergency was declared in mid-March,4 and they waited another forty-four
days before filing their motion seeking preliminary injunctive relief. We will
4 Governor’s Proclamation of State of Civil Emergency, signed March 15, 2020,
https://www.maine.gov/covid19/timeline (last visited Oct. 21, 2020).
6
apply the death knell exception only because it is not clear whether this matter
could have reached finality at the trial court level by the time the plaintiffs filed
this appeal had they acted more swiftly. We reiterate, however, that given the
concerns recognized in Jones and Purcell, see id., when challenges to election
laws are lodged on the eve of an election it is imperative that plaintiffs act as
expeditiously as possible in their pursuit of relief.
B. ARA’s Burden
[¶9] ARA’s complaint contends that the challenged statutory provisions
are “an unconstitutional burden on the right to vote,” which, pursuant to the
Maine Constitution, includes the right to vote absentee, subject to what the
Legislature deems “proper enactment” and “reasons deemed sufficient.”
Me. Const. art. II, §§ 1, 4; see Burdick v. Takushi, 504 U.S. 428, 433 (1992)
(“voting is of the most fundamental significance under our constitutional
structure” (quotation marks omitted)); Opinion of the Justices, 2017 ME 100,
¶ 49, 162 A.3d 188 (“Voting is a fundamental right, it is at the heart of our
democratic process.” (alteration and quotation marks omitted)). ARA “bears a
heavy burden of proving unconstitutionality, since all acts of the Legislature are
presumed constitutional.” Jones v. Sec’y of State, 2020 ME 113, ¶ 18, --- A.3d ---
(alteration and quotation marks omitted). To succeed in its challenge, ARA
7
“must demonstrate convincingly that the law and the Constitution conflict. All
reasonable doubts must be resolved in favor of the constitutionality of the
enactment.” Id. (alteration and quotation marks omitted).
[¶10] Beyond the “heavy burden” of proving that the Legislature’s
provisions for accepting absentee ballots are unconstitutional, id., ARA faces
another significant burden in seeking the “extraordinary remedy” of a
preliminary injunction shortly before a general election. See Saga Commc’ns of
New England, Inc. v. Voornas, 2000 ME 156, ¶ 19, 756 A.2d 954 (“historically,
the Maine courts have taken a conservative attitude toward injunctions,
holding the injunction to be an extraordinary remedy only to be granted with
utmost caution when justice urgently demands it” (quotation marks omitted));
Haskell v. Thurston, 80 Me. 129, 132, 13 A. 273, 274 (1888).
[¶11] To justify a preliminary injunction in this case, because the
requested injunctive relief has “mandatory aspects” and does not simply seek
“to preserve the status quo,” Dep’t of Env’t Prot. v. Emerson, 563 A.2d 762, 768,
771 (Me. 1989), ARA must demonstrate that it has a “clear likelihood of success
on the merits” of its complaint, id. at 768, 771, and must additionally
“demonstrate that (1) it will suffer irreparable injury if the injunction is not
granted; (2) such injury outweighs any harm which granting the injunctive
8
relief would inflict on the other party; . . . and [(3)] the public interest will not
be adversely affected by granting the injunction,” Bangor Historic Track, Inc. v.
Dep’t of Agric., Food & Rural Res., 2003 ME 140, ¶ 9, 837 A.2d 129. “Failure to
demonstrate that any one of these criteria are met requires that injunctive
relief be denied.” Id. ¶ 10. “The fact that appellants are asserting
First Amendment rights does not automatically require a finding of irreparable
injury.” Respect Maine PAC v. McKee, 622 F.3d 13, 15 (1st Cir. 2010) (alteration
and quotation marks omitted).
[¶12] Turning to the specific statutory provisions challenged by ARA, we
review the trial court’s findings of fact for clear error and its denial of the
requested preliminary injunction for an abuse of discretion. Bangor Historic
Track, Inc., 2003 ME 140, ¶ 11, 837 A.2d 129; Emerson, 563 A.2d at 768.
C. Absentee Ballot Receipt Deadline
[¶13] By statute, “[i]n order to be valid, an absentee ballot must be
delivered to the municipal clerk at any time before the polls are closed.”
21-A M.R.S. § 755. With one exception for very small municipalities, “[t]he polls
must be closed at 8 p.m. on election day.” 21-A M.R.S. § 626(2).
9
[¶14] ARA contends that the statutory deadline unconstitutionally
burdens the right to vote absentee in this particular election cycle5 because
(1) the ongoing pandemic will greatly increase absentee voting, (2) many
voters will exercise the option to return their absentee ballot by mail in lieu of
returning their ballot to their municipal clerk in person, and (3) problems
experienced by the United States Postal Service (USPS) will prevent some of
those ballots from being received before the deadline if the voter requests and
then mails an absentee ballot close to election day.6 Although ARA in its
complaint asked the Superior Court to enjoin the rejection of absentee ballots
that are postmarked by election day and then “arrive at the election office
within a minimum of ten days after Election Day,” and later changed its request
to a seven-day waiting period, it now suggests that a two-day extension would
suffice, and would “fit[] neatly” within the two-day deadline for municipal
clerks to deliver election returns to the Secretary. See 21-A M.R.S. § 711(3).7
5 ARA concedes that “[i]n a normal, non-pandemic year, this deadline might not necessarily
impose as significant a burden on the right to vote.”
6By statute, a voter may request an absentee ballot without giving a reason until “the 3rd business
day before election day.” 21-A M.R.S. § 753-B(2)(D) (2020).
7Title 21-A M.R.S. § 711(3) was recently amended to include the provisions of former 21-A M.R.S.
§ 712, which was repealed. P.L. 2019, ch. 636, §§ 14-15 (effective June 16, 2020).
10
[¶15] Although recognizing that under the federal constitution voting is
of “fundamental significance,” Burdick, 504 U.S. at 433, the United States
Supreme Court has said that “[a] State indisputably has a compelling interest in
preserving the integrity of its election process,” Purcell v. Gonzalez, 549 U.S. 1,
4 (2006) (quotation marks omitted), and so
as a practical matter, there must be a substantial regulation of
elections if they are to be fair and honest and if some sort of order,
rather than chaos, is to accompany the democratic processes. To
achieve these necessary objectives, States have enacted
comprehensive and sometimes complex election codes. Each
provision of these schemes, whether it governs the registration and
qualifications of voters, the selection and eligibility of candidates,
or the voting process itself, inevitably affects—at least to some
degree—the individual’s right to vote and his right to associate
with others for political ends. Nevertheless, the State’s important
regulatory interests are generally sufficient to justify reasonable,
nondiscriminatory restrictions.
Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) (quotation marks omitted); see
Burdick, 504 U.S. at 433 (recognizing that, pursuant to the Constitution, “States
retain the power to regulate their own elections” and that “[c]ommon sense, as
well as constitutional law, compels the conclusion that government must play
an active role in structuring elections”); Perez-Guzman v. Gracia, 346 F.3d 229,
238 (1st Cir. 2003) (“Fair, honest, and orderly elections do not just happen.
Substantial state regulation is a prophylactic that keeps the democratic process
from disintegrating into chaos. Consequently, there is a strong state interest
11
in regulating all phases of the electoral process . . . .”); Jones, 2020 ME 113,
¶ 20, --- A.3d ---.
[¶16] Furthermore, we find it instructive that in a recent case where a
United States District Court issued a preliminary injunction affecting an
absentee ballot deadline five days before an election, the Supreme Court stayed
the injunction, noting that “[t]his Court has repeatedly emphasized that lower
federal courts should ordinarily not alter the election rules on the eve of an
election.” Republican Nat’l Comm. v. Democratic Nat’l Comm.,
589 U.S. ---, 140 S. Ct. 1205, 1207 (2020). The Court emphasized “the wisdom
of the Purcell principle, which seeks to avoid . . . judicially created confusion,”
id., referring to its prior holding that, when considering a request for injunctive
relief from a statutory election procedure “just weeks before an election,” a
court is
required to weigh, in addition to the harms attendant upon
issuance or nonissuance of an injunction, considerations specific to
election cases . . . . Court orders affecting elections . . . can
themselves result in voter confusion and consequent incentive to
remain away from the polls. As an election draws closer, that risk
will increase.
Purcell, 549 U.S. at 4-5. The Purcell Court applied its principle of judicial
restraint in saying, “Given the imminence of the election and the inadequate
time to resolve the factual disputes, our action today shall of necessity allow the
12
election to proceed without an injunction suspending [the challenged statutory
election procedure].” Id. at 5-6; see Respect Maine PAC, 622 F.3d at 16 (noting
“the harm to the public interest from the chaos that will ensue if the Maine
election laws . . . are invalidated by a court order in the crucial final weeks
before an election”).
[¶17] With these principles in mind, the test for whether a particular
ballot regulation, such as Maine’s absentee ballot deadline, passes
constitutional muster is not necessarily strict scrutiny, rather
a more flexible standard applies. A court considering a challenge
to a state election law must weigh the character and magnitude of
the asserted injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to vindicate
against the precise interests put forward by the State as
justifications for the burden imposed by its rule, taking into
consideration the extent to which those interests make it necessary
to burden the plaintiff’s rights.
. . . [W]hen those rights are subjected to severe restrictions,
the regulation must be narrowly drawn to advance a state interest
of compelling importance. But when a state election law provision
imposes only reasonable, nondiscriminatory restrictions upon the
First and Fourteenth Amendment rights of voters, the State’s
important regulatory interests are generally sufficient to justify the
restrictions.
Burdick, 504 U.S. at 434 (citation and quotation marks omitted); see Jones,
2020 ME 113, ¶¶ 20-21, 23-24, --- A.3d ---; Nader v. Me. Democratic Party,
2012 ME 57, ¶ 26 n.11, 41 A.3d 551. “No bright line rule separates permissible
13
election-related regulation from unconstitutional infringements.” Purcell,
549 U.S. at 5 (alteration and quotation marks omitted); see Anderson, 460 U.S.
at 789 (“Constitutional challenges to specific provisions of a State’s election
laws . . . cannot be resolved by any litmus-paper test that will separate valid
from invalid restrictions.” (quotation marks omitted)).
[¶18] “Election laws will invariably impose some burden upon individual
voters.” Burdick, 504 U.S. at 433. Here, the Superior Court found that the
absentee ballot deadline prescribed by the Legislature in 21-A M.R.S. § 755
“even in 2020, imposes only a modest burden on the right to vote,” and we
agree. The court accepted ARA’s premise that, due to the pandemic, many
Maine voters will vote absentee in the November election, and “with the
increased use of absentee voting . . . comes the increased risk that some voters
will fail to have their absentee ballots delivered on time [by the USPS] so as to
be counted.” Nevertheless, the court correctly observed that
allowing voters to obtain an absentee ballot as close to election day
as the previous Thursday [pursuant to 21-A M.R.S. § 753-B(2)(D)
(2020)] is not necessarily tied to the use of the mail. Rather, it
permits a voter to obtain an absentee ballot that can be delivered
in person or to a secure lockbox or delivered by a third party. The
fact that Maine allows voters to request and obtain an absentee
ballot on the Thursday before election day does not somehow
render [section 755] unconstitutional because the Postal Service
cannot guarantee delivery through the mail by November 3, 2020.
14
See 21-A M.R.S. §§ 753-B(8), 754-A(2) (2020). Beyond the several available
options for returning an absentee ballot apart from mailing, the court also
found that the State has taken substantial steps to make voting, including
absentee voting, safer and more effective. Those changes include designing
polling places so as to mitigate exposure to the coronavirus, limiting the
number of voters allowed at any one time, and mandating social distancing and
face coverings. Further, the Attorney General has joined in successful litigation
to prevent operational changes by the USPS that could exacerbate any delay in
the return of absentee ballots. See Pennsylvania v. DeJoy, No. 20-4096,
2020 U.S. Dist. LEXIS 177334, at *2-6, *129-31 (E.D. Pa. Sept. 28, 2020), clarified
by Pennsylvania v. DeJoy, No. 20-4096, 2020 U.S. Dist. LEXIS 187732, at *5-8
(E.D. Pa. Oct 9, 2020).
[¶19] The effect on voters of the restriction imposed by the election day
deadline is weighed against the State’s interest in enforcing the statute, which
in this case is significant.8 See Burdick, 504 U.S. at 434. The Secretary highlights,
as an essential part of his responsibility “to facilitate an equitable and orderly
election,” the need for sufficient time to count ballots, entertain challenges,
8 Intervenors assert in their brief that one of those interests lies in “decreas[ing] the risk of fraud
that is inherent in mail voting.” We find nothing in the record to justify a fear of voter fraud based on
Maine’s voting procedures, including the option to return absentee ballots by mail.
15
initiate any necessary ranked-choice voting tabulations, and certify results
before other statutory deadlines arrive.
[¶20] Furthermore, as the Superior Court found, the deadline serves an
important state interest in maintaining voter confidence in the integrity of the
election by establishing a date certain—established by the people’s
representatives in the Legislature—on which votes are cast, a date not subject
to a court’s determination that “the statutory deadline is not really a deadline
at all.” As the court aptly stated,
For this court to unilaterally discard the statutory deadline and
impose a deadline of its own choosing, would amount to a judicial
re-writing of the election laws. Moreover, any deadline has aspects
of arbitrariness to it, including one crafted by the court. Such a
judicial modification of the deadline risks severe disruption of
Maine’s electoral process, under circumstances where the burden
on the right to vote as a result of the Delivery Deadline is slight.[9]
[¶21] Applying the “flexible” test prescribed by the Supreme Court and
the Purcell principle disfavoring court interference in a looming election, we
agree. Burdick, 504 U.S. at 434; Republican Nat’l Comm., 140 S. Ct. at 453-54.
The Burdick Court stated a principle that is applicable here—"Reasonable
9 See Me. Const. art. III, § 2 (providing that the Judicial Branch “shall [not] exercise any of the
powers properly belonging to either of the other[] [branches], except in the cases herein expressly
directed or permitted”). We do not opine on the question of whether the Governor has the authority
to grant the requested relief under her emergency powers, see supra n.4.
16
regulation of elections . . . does require [voters] to act in a timely fashion if they
wish to express their views in the voting booth.” 504 U.S. at 438. Because “we
conclude that the government’s interest is sufficient to justify the restriction
that the [deadline] requirement places on [the plaintiffs’ voting] rights,” Jones,
2020 ME 113, ¶ 34, --- A.3d ---, ARA has not demonstrated a “clear likelihood of
success” on its complaint for declaratory relief from the statutory deadline.
Emerson, 563 A.2d at 768, 771. Accordingly, the court did not abuse its
discretion in denying ARA’s motion for injunctive relief on this ground.
[¶22] In reaching this conclusion, we recognize, as emphasized by amici,
that the Maine Constitution, unlike its federal counterpart, guarantees citizens
of this state the general right to “pursu[e] and obtain[] safety.” Me. Const. art. I,
§ 1. As amici recognize, we have not had occasion to construe the contours of
that right, which amici assert must include the right to vote safely with greater
protections than those required by the federal Constitution.
[¶23] This Court has the authority and important responsibility to
construe the Maine Constitution. See Morris v. Goss, 147 Me. 89, 97, 83 A.2d 556,
561 (1951). In doing so, “we are not bound by any of the interpretations which
other courts may have made of their own Constitutions. Nor do we follow such
interpretations except to the extent that the reasoning upon which they rest is
17
convincing to us when applied to our Constitution.” Id. The Supreme Court has
recognized that Maine is “free, pursuant to [its] own law, to adopt a higher
standard” than that required by the federal Constitution. State v. Rees,
2000 ME 55, ¶ 5, 748 A.2d 976 (quotation marks omitted).
[¶24] Assuming, without deciding, that there is a particularized
constitutional right to vote safely that is protected by the Maine Constitution,
the Secretary’s proposed implementation of the applicable statutory procedure
is sufficient to guard against any infringement of a Maine citizen’s unquestioned
constitutionally-protected right to vote absentee, Me. Const. art. II, § 4. The
statute imposes a deadline by which a voter must return his or her absentee
ballot. 21-A M.R.S. § 755. The Secretary’s initiatives provide several “no
contact” ways to cure a defective ballot so long as the voter is diligent, see
Burdick, 504 U.S. at 438, including phone verification, requesting a new ballot
to be delivered in the way that the voter selects, or having the ballot challenged
(and therefore counted, see infra n.12) rather than rejected. As the Superior
Court found, and we have discussed, there are many ways for a voter to exercise
the franchise in the upcoming election, and an individual voter may
“pursu[e] . . . safety,” Me. Const. art. I, § 1, in the way that that person sees fit.
18
[¶25] For these reasons, declaring the statute to be unconstitutional
rather than deferring to both the Legislature’s judgment in enacting the statute
and the Secretary’s thorough cure procedures is not the appropriate remedy.
We are not legislators nor do we exercise the executive branch’s power to
implement legislation.10 See Me. Const. art. III (establishing three branches of
government in Maine and providing that no branch “shall exercise any of the
powers properly belonging to either of the others”).
D. Absentee Ballot Verification and Rejection Procedures
[¶26] Maine law gives considerable latitude and assistance to voters who
wish to vote by absentee ballot. See, e.g., 21-A M.R.S. §§ 753-A(3)-(6) (2020)
(allowing the designation of a family member or other third person to return
the ballot; allowing application for an absentee ballot by phone or electronic
10We also agree with the dissent’s statement that “[w]e should be uncomfortable extending a
legislatively imposed deadline and we should do so reluctantly.” Dissenting Opinion ¶ 51. The Maine
Constitution commands that we defer to the Legislature’s “proper enactment” of the statutory
deadline “for reasons [it] deemed sufficient,” “except in the cases . . . expressly directed or permitted”
by the Constitution. Me. Const. art. II, § 4; art. III, § 2. We diverge from the dissent’s statement only
in our conclusion that this is not an appropriate case in which to take that extraordinary step.
Moreover, the dissent agrees with the plaintiffs that the statutory deadline is only
unconstitutional “during a once-in-a-lifetime deadly pandemic,” Dissenting Opinion ¶ 51, but it does
not address how and by whose authority the statutory deadline would once again be constitutionally
applied after this election cycle. I.e., would the preliminary injunction the dissent would compel the
Superior Court to issue expire once the court, or this Court, or the Governor, or the Legislature
determined that the ongoing emergency, which will extend well beyond election day, had passed?
That unanswered question illustrates the danger of this Court exercising executive or legislative
powers.
19
means; providing for assistance to certain voters), 753-B(4)-(5), (8) (2020)
(providing for the issuance of a duplicate ballot in certain circumstances; for
clerk assistance in voting on-site at nursing homes and certain other licensed
facilities; and for absentee voting without application in the presence of the
clerk with immediate acceptance of the ballot), 753-C (2020) (special
procedures to facilitate absentee voting by participants in the Address
Confidentiality Program), 754-A(3) (2020) (allowing an aide to assist voters
who have concerns related to “physical disability, illiteracy or religious faith”).
[¶27] Nevertheless, there are some restrictions in addition to the
statutory deadline discussed supra. See 21-A M.R.S. § 759(3)(E). By statute,
election officials must reject an absentee ballot if, inter alia, the signature on the
envelope in which it was returned does not match the signature on the ballot
application, or if the affidavit on the envelope is not properly completed.
21-A M.R.S. § 759(3)(A)-(B).
[¶28] For this election cycle, the Secretary has issued extensive written
guidance to municipal election officials that was admitted in evidence at the
hearing on ARA’s motion for a preliminary injunction. In cases of a missing or
mismatched signature or improper affidavit, that guidance requires a clerk,
upon receipt of an absentee ballot, to
20
make a good faith effort to notify the voter as quickly as
possible (within one business day at a minimum) that the
ballot may be rejected or challenged unless the defect is cured.
If the ballot is received on election day or less than 24 hours before
election day, the clerk should make a good faith effort to notify the
voter as quickly as possible.
Notification is to be made by “email, using the email address provided on the
application; or telephone, using the phone number provided on the
application.” Detailed, specific procedures for notifying the voter of a potential
problem are set out in the guidance. Moreover, the Superior Court found
“significant” that the Secretary has established an online absentee ballot
tracking system that allows a voter “to follow the journey of their ballot from
the time of their request for an absentee ballot to its delivery and receipt by the
clerk, including whether it has been rejected.”11
[¶29] Notwithstanding its recognition of “the commendable strides the
Secretary has made . . . to implement cure procedures for rejected ballots,” ARA
contends that “the procedures still fall short.” ARA asks us to “giv[e] voters an
opportunity to cure their ballots for two days after Election Day”—five days in
the case of a challenged ballot—and permit voters to cure a ballot by
completing an affidavit rather than complying with the Secretary’s procedures.
See Maine Secretary of State Absentee Ballot Request page, https://apps.web.maine.gov/cgi-
11
bin/online/AbsenteeBallot/index.pl (last visited Oct. 21, 2020).
21
Depending on the defect involved, those procedures may include a simple
phone call, coming to the town office to cure the defect, requesting a duplicate
ballot to be delivered in the manner requested by the voter, or having the ballot
challenged (as opposed to rejected) in accordance with 21-A M.R.S. § 673
(2020).12
[¶30] ARA asserts that the Secretary’s procedures “impose a severe, or
at least significant, burden on the right to vote,” and, absent injunctive relief,
violate an absentee voter’s right to procedural due process.13 We disagree, and
conclude that the record supports the court’s finding that “[t]he Secretary’s
procedures for notification and an opportunity to cure have greatly reduced the
risk of an erroneous deprivation.”14 We have said that
[p]rocedural due process requires fundamental fairness, which
involves consideration of three factors to assess whether the State
has violated an individual’s right to due process: [f]irst, the private
interest that will be affected by the official action; second, the risk
of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government’s
12 Pursuant to 21-A M.R.S. § 696(1) (2020), “A challenged ballot must be counted the same as a
regular ballot. The validity of a challenged ballot need not be determined unless it affects the results
of an election.”
13 ARA’s complaint also stated an equal protection claim. Although that claim remains viable in
the underlying declaratory judgment action, ARA has not briefed or otherwise pursued the claim on
appeal and we do not discuss it further. See Mehlhorn v. Derby, 2006 ME 110, ¶ 11, 905 A.2d 290.
14 We share the court’s “confiden[ce] that the Secretary of State and the Attorney General, both
constitutional officers, will implement the Secretary’s procedure.”
22
interest, including the function involved and administrative
burdens that the additional or substitute procedural requirement
would entail.
In re Child of Lacy H., 2019 ME 110, ¶ 14 n.3, 212 A.3d 320 (quotation marks
omitted).
[¶31] Applying those factors here, it is beyond dispute that a citizen’s
right to vote is fundamental. Opinion of the Justices, 2017 ME 100, ¶ 49,
162 A.3d 188. As we have explained, however, the risk that an absentee voter
will be erroneously deprived of that right has been substantially reduced
through the procedures instituted by the Secretary, even if the statutory
deadline for returning such ballots is adhered to. Finally, as we have discussed,
the State’s interest in following statutory directives governing the election is
substantial. See supra ¶¶ 19-20.
[¶32] In sum, we conclude that absentee voters will be afforded
“fundamental fairness” in the November 2020 election. In re Child of Lacy H.,
2019 ME 110, ¶ 14 n.3, 212 A.3d 320 (quotation marks omitted). Accordingly,
ARA has not shown a “clear likelihood of success” on its complaint for
declaratory relief, and the court did not abuse its discretion in denying ARA
injunctive relief on this ground. See Bangor Historic Track, Inc., 2003 ME 140,
¶ 11, 837 A.2d 129; Emerson, 563 A.2d at 768.
23
The entry is:
Decision denying motion for preliminary
injunction affirmed.
____________________________
JABAR, J., dissenting.
[¶33] I respectfully dissent because I believe that we should be looking
to the Maine Constitution and not the Federal Constitution to protect the
constitutional rights of Maine citizens. The right to vote by absentee ballot is
enshrined in the Maine Constitution—in Article II, section 4—but no such
comparable right appears in the Federal Constitution.15 Normally we should
not be interfering with a legislative deadline, but we are not living in normal
times. We are confronted today with a crisis in our electoral process because
the Legislature, understandably, did not anticipate a once-in-100-years deadly
pandemic compounded by the United States Postal Service’s problems
delivering the mail on time.
15 The Maine constitution provides for the right to vote absentee, Me. Const. art. II, § 4, and Maine
statute provides the right to vote absentee by mail. 21-A M.R.S. § 754-A (2020).
24
I. DISCUSSION
A. The Health Crisis
[¶34] The COVID-19 pandemic is a global health crisis, the likes of which
we have not seen since the 1918 influenza pandemic. In the U.S. we have
experienced over 7 million cases and 215,000 deaths, with a projected uptick
this fall and winter season. This spring, the governor postponed the state’s
primary due to concerns for the health of voters, poll workers, and election
officials. The Secretary of State encouraged voters to vote by absentee ballot,
stating that he was recommending that Maine voters use the absentee voting
process to maintain social distancing measures, mitigate the outbreak, and vote
from the safety of their homes. In the delayed July primary, 55% of voters voted
absentee, whereas history tells us that no more than 10% ever voted absentee.
Of those absentee votes, 35% were by mail.
[¶35] The COVID-19 pandemic is still among us. By mid-September,
Maine’s coronavirus cases were trending upward, leading the Governor to
extend the state of emergency for the sixth time. Maine citizens are requesting
ballots for the November general election at a record-shattering pace. As of
mid-September, nearly 200,000 Maine citizens had already requested absentee
ballots.
25
[¶36] Even if the only issue were the increased number of people voting
absentee by mail, this by itself would undoubtedly create problems for Maine’s
ballot collecting process; however, the health crisis resulting from the
COVID-19 pandemic is compounded by serious difficulties with the postal
service’s ability to deliver mail on time.
B. United States Postal Service Crisis
[¶37] Added to the problems occasioned by the COVID-19 pandemic are
the United States Postal Service’s difficulties in delivering the mail. Before the
pandemic, the postal service delivered 96% of first-class mail within two to five
days. In the first week of September 2020, the postal service delivered just 82%
to 87% percent of first-class mail within that time frame. The postal service has
acknowledged its shortcomings. In a letter to the Maine Secretary of State, a
representative of the United States Postal Service stated, among other
disturbing things, the following:
[W]e wanted to note that . . . certain deadlines for requesting and
casting mail-in ballots are incongruous with the Postal Service’s
delivery standards.
....
To allow enough time for ballots to be returned to election officials,
domestic voters should generally mail their completed ballots at
least one week before the state’s due date.
26
....
[T]he Postal Service cannot adjust its delivery standards to
accommodate the requirements of state election law.
[¶38] It is the COVID-19 pandemic coupled with the postal service’s
delivery problems that have created the voting crisis that we are presently
confronting. It is easy to say that the Legislature, and only the Legislature, must
deal with the problems we confront today. However, we have been asked to
grant a preliminary injunction because the health crisis and postal service crisis
we are confronting infringes on a voter’s constitutional right to vote by
absentee ballot. Action by the Legislature dealing with the problems
surrounding the COVID-19 pandemic will be too late for voters in this upcoming
election.
C. Maine Constitution
[¶39] We have held that we must examine state constitutional claims
before reaching any federal questions. State v. Flick, 495 A.2d 339, 343-44
(Me. 1985). The U.S. Supreme Court has stated that it will refuse to decide cases
where there is an adequate and independent state ground for relief out of
“respect for the independence of state courts.” Michigan v. Long, 463 U.S. 1032,
1040 (1983). Here, we have a Maine constitutional provision, with no
equivalent in the Federal Constitution, that provides a Maine citizen with the
27
constitutional right to vote by absentee ballot.16 We should be looking to the
Maine Constitution “as the prime guarantor of the liberties of Maine’s people.”
Tinkle, The Maine State Constitution 20 (2d ed. 2013).
[¶40] Article II, section 4 of the Maine Constitution states:
The Legislature under proper enactment shall authorize and
provide for voting by citizens of the State absent therefrom in the
Armed Forces of the United States or of this State and for voting by
other citizens absent or physically incapacitated for reasons
deemed sufficient.
Since the right to vote by absentee ballot is a Maine constitutional right, any
infringement on that right must be subject to close scrutiny. The U.S. Supreme
Court has articulated an analytical approach that weighs the competing
interests put forward by the parties. Even though we are interpreting Maine’s
Constitution, there is no reason not to adopt the analytical approach used by
the federal court in protecting federally protected rights. In Anderson v.
Celebrezze, 460 U.S. 780, 789-90 (1983), the Court explained the analytical
approach to be used in these cases:
Constitutional challenges to specific provisions of a State’s election
laws . . . cannot be resolved by any litmus[-]paper test that will
16 We are free to accord Maine citizens greater rights than those provided under federal
jurisprudence when it comes to the protection of individual rights. See State v. Collins, 297 A.2d 620,
626 (Me. 1972) (recognizing that Maine’s higher standard of proof regarding the voluntariness of
confessions is a “value [that] has been endowed with the highest priority by being embodied in a
constitutional guarantee . . . [and therefore] we believe that it must be taken heavily into account in
the formulation of the public policy of this State.”). Unlike in the Collins case, here we are interpreting
a right to vote absentee, a right not enumerated in the Federal Constitution.
28
separate valid from invalid restrictions. Instead, a court must
resolve such a challenge by an analytical process that parallels its
work in ordinary litigation. It must first consider the character and
magnitude of the asserted injury to the rights protected by the First
and Fourteenth Amendments that the plaintiff seeks to vindicate.
It then must identify and evaluate the precise interests put forward
by the State as justifications for the burden imposed by its rule. In
passing judgment, the Court must not only determine the
legitimacy and strength of each of those interests, it also must
consider the extent to which those interests make it necessary to
burden the plaintiff’s rights. Only after weighing all these factors is
the reviewing court in a position to decide whether the challenged
provision is unconstitutional. The results of this evaluation will not
be automatic; as we have recognized, there is no substitute for the
hard judgments that must be made.
[¶41] We begin the evaluation by examining the interests put forward
by the State. Maine law allows voters to request absentee ballots up to three
business days before the election and to return the ballot by mail. 21-A M.R.S.
§§ 753-B(2)(D), 754-A (1)(D) (2020). All absentee ballots must be received by
8:00 p.m. on election day. See 21-A M.R.S. § 755 (2020). There is a legitimate
state interest in receiving all ballots by election day, whether the ballot is cast
in person or by mail. The State has an interest in maintaining voter confidence
in the integrity of the election and administering an equitable, orderly election.
The questions before us are whether the election day deadline for mail-in
absentee ballots, considering the health crisis and postal service problems we
are facing, places any burden on the constitutional right guaranteed by the
29
Maine Constitution to vote by absentee ballot, and whether the State interest is
outweighed by the burden placed on a Maine voter’s right to vote by absentee
ballot.
[¶42] Given the present crisis, these provisions do not protect a voter’s
right to vote by absentee ballot. Even if a voter obtained an absentee ballot on
the last day available under the law and put the ballot in the mail on the same
day, there is no guarantee or even a probability that the vote will be received
by the local clerk by election day. More disturbing is the fact that absentee
ballots put in the mail up to seven days before the election may not be received
by local clerks by election day. The postal service has stated that it will have
difficultly delivering absentee ballots within seven days, and has recommended
that voters mail in their absentee ballots at least seven days before the election.
These delays by the postal service do more to question the legitimacy and
integrity of the electoral process than a two-day extension for mail-in absentee
ballots. Under these circumstances, it is easy to conclude that ensuring that
absentee ballots arrive in the clerk’s office by election day is a burden on any
Maine citizen’s constitutional right to vote by absentee ballot. Although
denying relief to voters, the Superior Court found that the law imposes a
30
“modest burden” on the voter. ARA contends that the law imposes an “undue
burden” on the voter.
[¶43] Even if we conclude that the burden is a “modest burden,” and not,
as ARA contends, an “undue burden,” we must weigh this “modest burden” on
the voter against the state interest in receiving all absentee ballots by election
day.
[¶44] The Secretary of State contends that allowing ballots received up
to two days after the election will “severely disrupt Maine’s electoral process.”
The facts do not support this claim. The Secretary conceded at oral argument
that a change in the deadline for receiving absentee ballots by two days will not
affect how voters cast their ballots. The impact will be on the vote collection
and compilation process. Maine requires local clerks to file attested copies of
their election returns with the Secretary of State within three business days
after election day. 21-A M.R.S. § 711(3) (2020). According to the projected
numbers of late absentee ballots provided by the Secretary, there will be a
minimal impact on the electoral process. The Secretary has projected that
600-700 absentee ballots will be received after election day. With 500 voting
31
districts in Maine, local clerks will be dealing with an average of one to one and
a half late absentee ballots.17
[¶45] Having to count a few late absentee ballots received within two
days of the election and add the count to the count of the ballots received by
election day is an insignificant burden on the system. Local clerks will have
sufficient time to adjust the totals within the two days following the election in
order to submit their report to the Secretary within the statutory reporting date
of three days post-election. See 21-A M.R.S. § 711(3).
[¶46] When you weigh the burden on a Maine citizen’s right to vote
absentee with the minimal burden on local clerks to add an average of one or
two absentee ballots received within two days of the election, you can come to
only one conclusion—the burden on the voter greatly outweighs the burden on
local clerks. Counting mail-in absentee ballots that are postmarked by election
day and received within two days of the election will not cause any disruption,
much less a major disruption, in the state’s electoral process.
[¶47] We should follow the lead of the Pennsylvania Supreme Court.
Confronted with the identical situation facing us, i.e., a legislatively set deadline
of election day for the receipt of absentee ballots, the court extended the
17 ARA’s expert suggests that around 2,400 ballots will be received late, equating to an average of
four to five late ballots per voting district.
32
deadline for three days and further held that even ballots that are received
without a postmark will be “presumed to have been mailed by Election Day”.
Pa. Democratic Party v. Boockvar, No. 133 MM 2020, 2020 Pa. LEXIS 4872, at
*89 (Sept. 17, 2020).18
[¶48] In balancing the interest of the voter with the state interest of
setting a deadline, the Pennsylvania Supreme Court stated,
We are fully cognizant that a balance must be struck between
providing voters ample time to request mail-in ballots, while also
building enough flexibility into the election timeline to guarantee
that ballot has time to travel through the USPS delivery system to
ensure that the completed ballot can be counted in the election.
Moreover, we recognize that the determination of that balance is
fully enshrined within the authority granted to the Legislature
under the United States and Pennsylvania Constitutions.
Id. at *45-46.
[¶49] The court recognized that the extension of the deadline for receipt
of ballots was at variance with Pennsylvania’s election law, and made it clear
that it was not holding that the election day deadline was unconstitutional on
its face, but was an “as applied” infringement of the elector’s right to vote in the
middle of a pandemic. The court held it was a temporary remedy made
necessary by the health crisis. Id. at *50.
ARA limited their request to counting mail-in ballots that are postmarked by election day
18
received within two days after that.
33
[¶50] Several days ago, on October 19, 2020, the U.S. Supreme Court
denied a request for a stay, leaving in place the Pa. Democratic Party v. Boockvar
order granting the three-day extension. See Republican Party of Pa. v. Boockvar,
2020 U.S. LEXIS 5181, --- S. Ct. ---, 2020 W.L. 6128193. The court split 4-4,
thereby denying the Republican Party’s Emergency Application For Stay
Pending Disposition Of A Petition For Writ Of Certiorari.
II. CONCLUSION
[¶51] We should be uncomfortable extending a legislatively imposed
deadline and we should do so reluctantly, but we cannot ignore the untenable
position in which Maine voters find themselves by having to exercise their
constitutional right to cast an absentee vote in the middle of a deadly pandemic.
The Maine Legislature cannot act before election day and the only remedy to
protect the constitutional right to cast a vote by absentee ballot is a preliminary
injunction extending the deadline for two days for any ballots postmarked on
or before election day.19 The Secretary has taken numerous positive steps to
assist absentee voters during this pandemic, and as a result of this
commendable effort, many Maine voters who decide to mail in their absentee
ballot will avoid missing the election day deadline. Although the Secretary has
19 In the 2018 general election, more than 86% of rejected ballots arrived within two days after
the deadline.
34
taken steps to ameliorate the effects of the pandemic, he cannot rectify the
shortcomings of the United States Postal Service. We cannot ignore those
Maine voters, projected to number at least 600-700, who will have their
constitutional right to vote by absentee ballot impacted by the COVID-19
pandemic and the United States Postal Service’s delivery problems. The
election day deadline for the receipt of mail-in absentee ballots is
unconstitutional “as applied” during a once-in-a-lifetime deadly pandemic. I
conclude by quoting from Storer v. Brown, a case cited by the Anderson v.
Celebrezze Court that reviewed election laws:
The rule is not self-executing and is no substitute for the hard
judgments that must be made. Decision in this context, as in others,
is very much a matter of degree, very much a matter of considering
the facts and circumstances behind the law, the interests which the
State claims to be protecting, and the interests of those who are
disadvantaged by the classification. What the result of this process
will be in any specific case may be very difficult to predict with
great assurance.
415 U.S. 724, 730 (1974) (alterations omitted) (citations omitted) (quotation
marks omitted).
[¶52] I would vacate the judgment and direct the Superior Court to grant
the request for a preliminary injunction requiring the Secretary of State to
count any mail-in ballots postmarked on or before election day and received
35
within two days of election day. I would affirm the other aspects of the Superior
Court’s decision.
Matthew S. Warner, Esq., Preti Flaherty Beliveau & Pachios, LLP, Portland, and
John Devaney, Esq. (orally), Perkins Coie LLP, Washington, District of Columbia,
for appellants Alliance for Retired Americans, Vote.org, Doug Born, and Don
Berry
Aaron M. Frey, Attorney General, Phyllis Gardiner, Asst. Atty. Gen. (orally),
Thomas Knowlton, Asst. Atty. Gen., and Jason D. Anton, Asst. Atty. Gen., Office of
the Attorney General, Augusta, for appellees Secretary of State and Attorney
General
Patrick Strawbridge, Esq. (orally), and Alexa R. Baltes, Esq., Consovoy McCarthy
PLLC, Boston, Massachusetts and Arlington, Virginia, for appellees Donald J.
Trump for President, Inc., Republican National Committee, National Republican
Senatorial Committee, and Republican Party of Maine
Zachary L. Heiden, Esq. (orally), and Emma E. Bond, Esq., American Civil
Liberties Union of Maine Foundation, for amicus curiae American Civil Liberties
Union of Maine Foundation
Beth Ahearn, Esq., Maine Conservation Voters, Augusta, for amicus curiae
Maine Conservation Voters
Kennebec County Superior Court docket number CV-2020-95
FOR CLERK REFERENCE ONLY