Grossman v. Secretary of the Commonwealth

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SJC-12996
REBECCA GROSSMAN & others1 vs. SECRETARY OF THE COMMONWEALTH.
Suffolk. August 24, 2020. - August 26, 2020.
Present: Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
Elections, Ballot, Primary. Secretary of the Commonwealth.
Constitutional Law, Elections.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on August 19, 2020.
The case was reported by Kafker, J.
Jeffrey S. Robbins for the plaintiffs.
Anne Sterman, Assistant Attorney General, for the
defendant.
The following submitted briefs for amici curiae:
William G. Cosmas, Jr., for Robert Goldstein.
Torey B. Cummings, Assistant United States Attorney, for
the United States.
Matthew R. Segal, Ruth A. Bourquin, & Jessica J. Lewis for
American Civil Liberties Union of Massachusetts, Inc.
Michael Walsh, pro se.
1 Becky Grossman for Congress, Jonathan Levenfeld, Sophie
Kripp, and Shirley D. Grossman, on behalf of themselves and
others similarly situated.
2
KAFKER, J. In response to the COVID-19 pandemic, the
Legislature passed an emergency law designed to increase voting
options in the September 1, 2020, primary election as well as
the November 3, 2020, general election. See St. 2020, c. 115.
A prominent additional voting option included in the act is
expansive voting by mail. For the primary election, voters may
apply for a "mail-in" ballot, so long as their application to
vote by mail is received before 5 P.M. on Wednesday, August 26,
2020. See St. 2020, c. 115, § 6 (e) (2). Those mail-in primary
election ballots must be completed and received by local
election officials before 8 P.M. on September 1.See St. 2020,
c. 115, § 6 (h) (3); G. L. c. 53, § 43. The mail-in ballots can
be returned by mail, dropped off in drop boxes provided by local
officials, or hand-delivered to election officials. See
St. 2020, c. 115, § 6 (h) (1). A voter who has requested a
mail-in ballot can also choose to vote in person on either
election day, as always, or between August 22 and 28, 2020, at
early polling locations established pursuant to the act, in lieu
of submitting his or her mail-in ballot. See St. 2020, c. 115,
§ 7 (b) (1).
The plaintiffs, consisting of a candidate in the primary
election, her campaign, and a few identified Massachusetts
registered voters, contend that the September 1 deadline for the
receipt of mail-in ballots significantly interferes with the
3
constitutional right to vote. They seek an order from this
court requiring the Secretary of the Commonwealth (Secretary) to
accept mail-in ballots that are received within ten days of the
primary election, so long as those ballots are postmarked by
September 1.2
Having reviewed the emergency law and its implementation by
the Secretary, we conclude that the existing September 1
deadline is constitutional. The new law does not significantly
interfere with the constitutional right to vote in the September
1 primary election. Rather, the legislation enhances the right
to vote in the primary, as well as the general, election, by
providing multiple means of voting, including options to vote by
mail that previously never existed. The September 1 deadline
for the receipt of mail-in and other ballots for the primary
election is also reasonably designed to account for a number of
time-sensitive legal requirements that follow shortly after the
primary election, including those that provide for recounts and
challenges, as well as the timely mailing of ballots to military
2 At the time of their original complaint, three of the
individual plaintiffs asserted that they had applied for, but
not yet received, their mail-in ballots for the primary
election. The Secretary has since averred that the ballots for
two of these individual plaintiffs were mailed on August 15,
2020. The third plaintiff originally applied for an absentee
ballot to be sent to her college, which was closed at the time.
The Secretary has averred that she has since applied for, and
been mailed, a second ballot at her local residence.
4
and overseas voters, which is required by Federal law. A time-
defined primary election process, with reasonable deadlines,
including the September 1 deadline at issue, is necessary to
ensure not only compliance with Federal law but also full
participation and a fair and orderly general election in
November. Finally, for those who requested or received mail-in
ballots very late in the process, there remain multiple
alternatives to simply mailing back the ballots to ensure that
one's vote is counted in the primary election. In sum, the new
law enhances and does not diminish the means of voting in the
primary election.3
Background. Effective July 6, 2020, the Legislature passed
"An Act relative to voting options in response to COVID-19"
(act). See St. 2020, c. 115. The act was intended to increase
voting options for the 2020 elections in light of the safety
risks posed by the COVID-19 pandemic. See id. Among other
things, it decreases barriers to registering to vote, increases
in-person voting options, calls for new safety protocols for in-
person voting, expands the availability of absentee ballots, and
implements a Statewide plan for voting by mail in the 2020
3 We acknowledge the amicus letters submitted by Robert
Goldstein, Michael Walsh, and the American Civil Liberties Union
of Massachusetts, Inc., as well as the amicus brief submitted by
the United States.
5
primary and general elections. See St. 2020, c. 115, §§ 6 (b),
7, 15, 17, 18, 19.
1. Applying to vote by mail. The additional voting option
at issue here allows any voter to cast his or her ballot by mail
in the 2020 primary and general elections. See St. 2020,
c. 115, § 6 (b). To do so, a voter must complete an application
to vote by mail and return it to the city or town clerk's office
before 5 P.M. on Wednesday, August 26, 2020. See St. 2020,
c. 115, § 6 (e) (1), (2).4, 5
Once a voter's application is received, a ballot is sent to
the voter's address along with instructions and return envelopes
with prepaid, first-class postage. See St. 2020, c. 115,
§ 6 (e) (1), (g) (1). The Secretary has created a ballot
tracking database that allows voters to confirm in real time
whether their application has been received, as well as the date
4 Under the act, the Secretary was required to automatically
disseminate applications by July 15, 2020 to all voters who
registered to vote before July 1, 2020. See St. 2020, c. 115,
§ 6 (d) (1). The Secretary in fact sent out the applications
one week later, on July 22, 2020. Voters can also access the
application form online. See 2020 Vote by Mail Application,
https://www.sec.state.ma.us/ele/elepdf/2020-Vote-by-Mail-
Application.pdf [https://perma.cc/SY6A-RGS3]. An online
application form may be returned by mail, facsimile, e-mail, or
in-person delivery. See id.
5 Alternatively, voters who have timely submitted an
application may choose to receive their ballot in person at the
city or town clerk's office. See St. 2020, c. 115, § 6 (e) (1),
(g) (1).
6
on which their blank ballot was mailed to them. See Secretary
of the Commonwealth, Elections and Voting: Track My Ballot,
https://www.sec.state.ma.us/wheredoivotema/track/trackmyballot
.aspx [https://perma.cc/5HCV-XGGE]. See also Secretary of the
Commonwealth, Voting by Mail FAQ, https://www.sec.state.ma.us
/ele/eleev/early-voting-faq.htm [https://perma.cc/85NL-LG5T].
2. Completing and returning mail-in ballots. Once voters
receive and complete their mail-in primary election ballot, they
may submit the ballot in one of three ways. First, voters may
physically bring the completed ballot to the city or town
clerk's office or an early voting location.6 St. 2020, c. 115,
§ 6 (h) (1) (i). See Secretary of the Commonwealth, Election
Advisory # 20-01 (Aug. 17, 2020). Second, voters may deposit
their ballot into a secured municipal drop box provided by local
election officials. St. 2020, c. 115, § 6 (h) (1) (ii). Third,
voters may mail the ballot to the city or town clerk's office
using the envelopes provided with the ballot. St. 2020, c. 115,
§ 6 (h) (1) (iii). Regardless of the method selected, the
primary election ballot must be received by the city or town
clerk's office before 8 P.M. on Tuesday, September 1, 2020, in
6 Pursuant to guidance issued by the Secretary, ballots
should not be submitted to polling locations on the actual
election day itself, because such ballots must be checked at the
local election office before they can be counted at a polling
location. See Secretary of the Commonwealth, Election Advisory
# 20-01 (Aug. 17, 2020).
7
order to be counted. See St. 2020, c. 115, § 6 (h) (3); G. L.
c. 53, § 43. Voters can also confirm that their completed
ballot was received, and whether it was accepted or rejected,
using the aforementioned ballot tracking database provided by
the Secretary. See Secretary of the Commonwealth, Voting by
Mail FAQ, https://www.sec.state.ma.us/ele/eleev/early-voting-
faq.htm [https://perma.cc/85NL-LG5T].
3. In-person voting. Voters who have not yet returned
their completed primary election ballot also have the option of
voting in person. See St. 2020, c. 115, § 24. The act
provides, for the first time, for a seven-day in-person early
voting period from August 22, 2020, to August 28, 2020.
St. 2020, c. 115, § 7 (b) (1). Additionally, voters may still
vote in person on election day, September 1. See St. 2020,
c. 115, § 24.7
4. Subsequent election deadlines. After the September 1
primary election, a number of deadlines follow in the period
before the general election. On or before September 4, any
recount petitions must be filed with election officials. See
St. 2019, c. 142, § 88. On September 5, local election
7 The act also tasks the Secretary with promulgating
emergency regulations to implement protective measures at the
polls, including social distancing, personal protective
equipment, and the use of hand sanitizers. See St. 2020,
c. 115, § 19.
8
officials must certify primary election results. See G. L.
c. 53, § 52. Any recounts must be completed by September 12,
and any challenges to nomination papers must be heard and
adjudicated by the State Ballot Law Commission by September 14.
See St. 2019, c. 142, §§ 88, 90. Subsequent to such recounts
and adjudicatory decisions, the Secretary must prepare and print
more than 500 different general election ballot styles required
by all of the different districts and jurisdictions within the
Commonwealth, and then disseminate them to local election
officials by September 16 for distribution to military and
overseas voters. Under Federal law, these general election
ballots for military and overseas voters must be distributed by
local election officials by September 19, 2020. See 52 U.S.C.
§ 20302(a)(8)(A). See also St. 2019, c. 142, § 91.
5. Recent issues at the United States Postal Service. To
the extent that ballot applications, mail-in ballots, and ballot
return envelopes are transmitted by mail, the Secretary has
directed that they be sent by the United States Postal Service
(postal service) using first-class postage. In a letter dated
July 30, 2020, the general counsel for the postal service
informed the Secretary of the potential effect of postal service
processing times on the delivery of election materials. The
letter stated that certain Massachusetts "deadlines for
requesting and casting mail-in ballots are incongruous with the
9
Postal Service's delivery standards." The letter explained that
most domestic first-class mail is delivered two to five days
after it is received by the postal service. Other mail is
delivered more slowly. The general counsel recommended that
applications to vote by mail be submitted no later than fifteen
days before election day, and completed ballots be mailed at
least one week before election day. Though the letter primarily
addressed the feasibility of mail-in ballot deadlines pertaining
to the 2020 general election, the primary election deadlines in
Massachusetts also do not meet the general counsel's recommended
timetable. At the same time, however, the letter indicated that
"the Postal Service is not purporting to definitively interpret
the requirements of your state's election laws, and also is not
recommending that such laws be changed to accommodate the Postal
Service's delivery standards." Rather, the letter stated that
the postal service would be unable to adjust its delivery
standards to accommodate the mail-in ballot deadlines.8
8 More recently, on August 21, 2020, the Postmaster General
of the United States testified before the United States Senate
as to recent changes at the United States Postal Service (postal
service). See Boston Globe, Postmaster pledges to prioritize
election mail, but offers no plan to ensure timely delivery
(Aug. 21, 2020) https://www.bostonglobe.com/2020/08/21/nation
/postmaster-testify-before-senate-amid-uproar-over-mail/
[https://perma.cc/G6KY-Z4V2]. The Postmaster General told
senators that he was not yet able to provide a plan to ensure
the timely delivery of election ballots. Id. At the same time,
he stated that the postal service was "fully capable and
committed" to delivering election materials on time. Id.
10
Discussion. 1. Standard of review. The right to vote,
expressly provided by both art. 3 of the Amendments to the
Massachusetts Constitution9 and art. 9 of the Massachusetts
Declaration of Rights, 10 is fundamental. See Chelsea
Collaborative, Inc. v. Secretary of Commonwealth, 480 Mass. 27,
32-33 (2018) ("the fundamental right to vote is also implicitly
protected under other provisions of the Declaration of Rights").
At the same time, "the Constitution provides the Legislature
with broad authority as part of the State's police power, to
enact reasonable laws and regulations that are, in its judgment,
appropriate." Id. at 33. See Opinion of the Justices, 368
9 Article 3 of the Amendments to the Massachusetts
Constitution provides:
"Every citizen of eighteen years of age and upwards,
excepting persons who are incarcerated in a correctional
facility due to a felony conviction, and, excepting persons
under guardianship and persons temporarily or permanently
disqualified by law because of corrupt practices in respect
to elections who shall have resided within the town or
district in which he may claim a right to vote, six
calendar months next preceding any election of governor,
lieutenant governor, senators, or representatives, shall
have a right to vote in such election of governor,
lieutenant governor, senators and representatives; and no
other person shall be entitled to vote in such election."
10Article 9 of the Massachusetts Declaration of Rights
provides: "All elections ought to be free; and all the
inhabitants of this commonwealth, having such qualifications as
they shall establish by their frame of government, have an equal
right to elect officers, and to be elected, for public
employments."
11
Mass. 819, 821 (1975) ("The court has sustained statutes which
reasonably regulate elections . . .").
Whenever we evaluate the constitutionality of a restriction
on the right to vote, we apply a "sliding scale approach, . . .
through which [we] weigh the character and magnitude of the
burden the State's rule imposes on the plaintiffs' rights
against the interests the State contends justify that burden,
and consider the extent to which the State's concerns make the
burden necessary." Goldstein v. Secretary of the Commonwealth,
484 Mass. 516, 524 (2020), quoting Libertarian Ass'n of Mass. v.
Secretary of the Commonwealth, 462 Mass. 538, 560 (2012).11
"Because the right to vote is a fundamental one protected by the
Massachusetts Constitution, a statute that significantly
interferes with that right is subject to strict judicial
scrutiny" (citations omitted). Chelsea Collaborative, Inc., 480
Mass. at 33. "By contrast, statutes that do not significantly
interfere with the right to vote but merely regulate and affect
11As discussed in Chelsea Collaborative, Inc. v. Secretary
of the Commonwealth, 480 Mass. 27, 34-35 (2018), the "sliding
scale" approach originates from Federal constitutional
jurisprudence. However, as the court went on to note, "there
may be circumstances where the Massachusetts Declaration of
Rights and art. 3 require application of this analysis in a
manner that guards more jealously against the exercise of the
State's police power than the application of the framework under
the Federal Constitution" (quotation and citation omitted). Id.
at 35.
12
the exercise of that right to a lesser degree are subject to
rational basis review to assure their reasonableness." Id.at
34.12 Here, the parties dispute the standard of review that
should apply to the September 1 deadline established under the
act, with the plaintiffs urging that it is strict scrutiny, and
the Secretary that it is rational basis. Our first task,
therefore, is to resolve that issue.
2. The burden of the September 1 deadline on the right to
vote. The plaintiffs argue that the September 1 deadline
imposed under the act is a significant burden on their right to
vote by mail. There are multiple problems with this argument.
First, there is no constitutional right to vote by mail. There
is, rather, a more general constitutional right to vote.
Second, voters, including those who have requested mail-in
ballots, have multiple voting options, and thus are not limited
to returning their ballots by mail. Third, reasonable, firm
deadlines for voting are necessary, particularly in the primary
election process which must be completed in a timely manner to
ensure an orderly general election. For all of these reasons,
as more fully discussed infra, we conclude that the September 1
As the court noted in Chelsea Collaborative, Inc., 480
12
Mass. at 36 n.22, "rational basis" and "strict scrutiny" are
"shorthand for referring to the opposite ends of a continuum of
constitutional vulnerability determined at every point by the
competing values involved" (citations omitted).
13
deadline for voting, which applies equally to voting by mail as
well as in-person voting, does not significantly burden the
right to vote given the multiple options available to voters,
including those who have requested mail-in ballots.
We begin by emphasizing that the expansion of the right to
vote, by providing multiple voting options, was the
Legislature's express purpose in adopting the act. See
St. 2020, c. 115, preamble ("Whereas, The deferred operation of
this act would tend to defeat its purpose, which is to forthwith
provide for increased voting options in response to COVID-19,
therefore it is hereby declared to be an emergency law,
necessary for the immediate preservation of the public health
and convenience" [emphasis added]).
Prior to the adoption of the act, voters effectively had
two options for voting in a State primary election. If they had
a recognized excuse for not being able to vote in person on the
date of the primary election, namely, a physical disability,
religious objection, or absence from the Commonwealth, they
could vote in advance using an absentee ballot. See G. L.
c. 54, § 86. Otherwise, they had to vote in person. In
recognition of the COVID-19 pandemic and the potential impact
that it might have on the ability or desire of voters to appear
in person to vote at a polling location, the Legislature (and
the Governor) acted on July 6, 2020, to create a number of new
14
voting options in time for the September 1 primary election, as
well as for the general election that follows on November 3.
For the first time, voters can now vote in a primary election in
person at early polling locations.13 Early in-person voting
commenced on August 22, and is ongoing through August 28. In
addition, the act provided primary election voters, again for
the first time, with the option of "no excuse" voting by mail,
the option at issue here. As to that option, the act also
provided several different ways for voters to submit their mail-
in ballot so that it is received on or before the September 1
deadline, only one of which requires reliance on the postal
service. See Chelsea Collaborative, Inc., 480 Mass. at 39
(describing widespread accessibility of voter registration
process). While voters do have the option of returning their
ballot by mail, using the first-class postage-prepaid envelope
provided by the Secretary for that purpose, they also can (1)
deliver it in person to their city or town clerk's office, (2)
deposit it in a secure drop box, if one is available in their
city or town, or (3) deliver it in person to one of the
aforementioned early polling locations or the city or town
clerk's office. Of course, voters also still have the option of
13In 2014, the Legislature authorized limited early voting
in State biennial elections, but not primaries. See St. 2014,
c. 111, § 12.
15
voting in person on September 1, in lieu of submitting their
mail-in ballot. Thus, when the act is examined as a whole,
there can be no doubt that voters now have many more options for
voting in the primary election than existed prior to the passage
of the act, and multiple means of delivering their mail-in
ballot before the September 1 deadline.
This is not to suggest that the emergency act was prescient
and anticipated all of the potential problems arising from the
COVID-19 crisis. In its effort to support applications and
voting by mail, the Legislature may have been overly optimistic
to expect that mail-in ballots could be requested by voters as
late as August 26, be filled out and mailed back by voters, and
be received by election officials on or before the September 1
deadline. The Legislature certainly could not have anticipated
the recent postal service problems. With that said, the
Legislature did not leave the right to vote dependent on the
vagaries of postal service efficiency. The act provided voters
with the opportunity to request mail-in ballots well before the
August 26 deadline; while there was some initial delay in
getting the applications for mail-in ballots out to registered
voters, they did go out by July 22, well over a month before the
August 26 deadline. Moreover, the Secretary's website allows
voters to track the receipt of their application, the date that
their blank ballot is mailed, and the date that their completed
16
ballot is received. For those voters who have experienced
delays in receiving their mail-in ballots after applying for
them, or for those who have not yet received or even applied for
ballots, they have other options, as outlined supra, for making
sure their ballot is received, or otherwise exercising their
right to vote, by the September 1 deadline.
Nor do we minimize the importance of voting by mail,
especially during the ongoing COVID-19 pandemic. For many
voters, including those over the age of sixty-five and those
with pre-existing conditions, for whom the coronavirus has
proved so lethal, voting with minimal or no personal contact is
rightly viewed as their only option. The act, however, took
this into account. It provided, for the first time, for the
option of a "no excuse" mail-in primary election ballot. And
while it extended the deadline for requesting and returning such
a ballot perhaps too close to the due date to encourage this
option, the over-all mail-in ballot process was laudable and
reasonable. Still further, the Legislature built in other
contactless options, such as the use of drop boxes, for voters
to use if they were not prepared or able to return their mail-in
ballots by the September 1 deadline through the postal service.
By providing all of these expanded voting options for the
primary election, the Legislature did act to try to reduce the
number of voters who would need to appear in person at polling
17
locations, either on election day or for early voting, which, in
turn, one would reasonably expect to reduce the potential risk
for the spread of the coronavirus. Understandably, that will
not make polling locations sufficiently "safe" for all voters,
especially the most vulnerable, but it is another example of how
the act has enhanced, not burdened, the right to vote during
these unprecedented times.
Deadlines are also a necessary part of the election
process, particularly the primary election, which must be
completed in a timely fashion to set the stage for the general
election. See Chelsea Collaborative, Inc., 480 Mass. at 41.
The question then becomes whether the particular deadline
selected nonetheless constitutes a significant burden on the
exercise of the constitutional right. In making this
determination, we look to the statutory scheme as a whole. As
discussed supra, there are a number of State and Federal
statutory election deadlines that follow the September 1 primary
election and other preparations that must be undertaken to
effectuate the general election that takes place shortly after
it. Most notably, by Federal law, general election ballots must
be distributed to military and overseas voters by local election
officials by September 19. See 52 U.S.C. § 20302(a)(8)(A). See
also St. 2019, c. 142, § 91. To comply with this deadline, the
Secretary must complete the general election ballots and provide
18
them to local election officials by September 16. For the
upcoming general election, this involves preparing and printing
the more than 500 unique ballot styles necessitated by all of
the different electoral districts and jurisdictions within the
Commonwealth. Before that can happen, however, local election
officials must certify primary election results, which will not
occur for this primary election until September 5. See G. L.
c. 53, § 52. In the meantime, recounts may be demanded by
September 4, but not resolved until as late as September 12.
St. 2019, c. 142, § 88. There is also the possibility for
objections to nominations, which may be heard and adjudicated by
the State Ballot Law Commission as late as September 14. See
St. 2019, c. 142, § 90. In effect, therefore, the Legislature
had to consider and balance dueling voting rights when it came
to setting a deadline for the receipt of mail-in ballots for the
September 1 primary election, so as not to disenfranchise voters
during the primary election but also not to disenfranchise
voters in the general election that follows.
Based on the aforementioned circumstances and their
particular relevance to this primary election, we conclude that
the September 1 deadline established under the act for the
receipt of mail-in and all other ballots does not significantly
interfere with the fundamental right to vote under the
Massachusetts Constitution so as to require the application of
19
strict scrutiny. Therefore, we apply the rational basis test to
determine its reasonableness.
3. Rational basis review of the September 1 deadline. "As
a matter of due process, rational basis analysis requires that
statutes bear a real and substantial relation to the public
health, safety, morals, or some other phase of the general
welfare" (quotation and citation omitted). Chelsea
Collaborative, Inc., 480 Mass. at 40. Additionally, "[a]s a
matter of equal protection, the rational basis test includes a
requirement that an impartial lawmaker could logically believe
that the classification would serve a legitimate public purpose
that transcends the harm to the members of the disadvantaged
class" (quotation and citation omitted). Id. In making this
assessment, we operate from the "strong presumption that the
Legislature does not act arbitrarily." Id. at 45. On the
record before us, it is apparent that it did not.
As discussed at length supra, the September 1 deadline for
the counting of ballots is reasonable in light of the numerous
State and Federal statutory election deadlines that follow the
September 1 primary election and the other matters that must be
addressed to effectuate the general election that follows. In
the Legislature's estimation, the existence of these deadlines
and other matters, which either must or may need to be satisfied
to allow the general election that follows to proceed, made it
20
unfeasible to provide for the post-election day receipt of mail-
in ballots in connection with the September 1 primary election.
In this regard, the present case resembles the Chelsea
Collaborative case. There, the court considered a similar
constitutional challenge to a statute that required individuals
to register to vote no later than twenty days before the
election. See Chelsea Collaborative, Inc., 480 Mass. at 28. In
so doing, the court weighed the fundamental right to vote
against the various other responsibilities that government
officials had to attend to between the deadline and the date of
the election:
"Local election officials are responsible for processing
voter registration applications, screening them for errors,
and confirming voter qualifications. During the time
immediately preceding an election, elections officials have
a variety of tasks in addition to processing these forms.
For example, these administrators must recruit and train
poll workers, test elections-related machines, and print
voter lists prior to the commencement of election day
voting."
Id. at 41. In light of this, the court found that there was
"ample evidence" that it would be rational for the Legislature
to conclude that a deadline was necessary prior to election day
to achieve the "legitimate public purposes" of "conducting
orderly and legitimate elections." Id. at 40-41. The court
then went on to conclude that, "at least for the time being, an
impartial lawmaker could logically believe that the voter
21
registration deadline imposed twenty days prior to election day
still serves legitimate public purposes that transcend the harm
to those who may not vote." Id. at 46.
For their part, the plaintiffs in the present case suggest
that the potential that some of the aforementioned events and
deadlines will even occur or become relevant following the
September 1 election is speculative and, based on past history,
unlikely or at least manageable. They also suggest that the
Secretary could have sought an exemption from the forty-five day
military and overseas voter deadline, as permitted by law under
certain circumstances. The Legislature and the Secretary must,
however, prepare and provide time for recounts and contested
nominations. They do not have the luxury of counting on them
not to occur. A request for exemption from the Federal
deadline, meanwhile, may or may not be granted. In crafting the
act, the Legislature chose not to leave this to chance or
conjecture, which certainly is not an irrational choice.
In considering the reasonableness of the September 1
deadline for the receipt of mail-in ballots, we are also mindful
that with the dramatic expansion of voting by mail introduced
under the act comes the potential for more complicated issues if
there is a challenge to those ballots. Thus, the fact that
challenges may have been resolved in the past in a certain
number of days does not mean they will be resolved as quickly in
22
this new mail-in ballot world. We are also mindful, as the
Legislature no doubt was, that any challenge will be playing out
in the midst of a pandemic.
For all these reasons, we conclude that the Legislature
acted rationally when it concluded that a September 1 deadline
for the receipt of mail-in ballots in the primary election was
necessary to achieve the legitimate public purposes of
conducting orderly primary and general elections during this
particular election cycle.14
Conclusion. For the reasons discussed, we conclude that
the September 1 deadline for receipt of mail-in primary election
ballots is not unconstitutional.
So ordered.
14While we have concluded that the statutory September 1
deadline only needs to satisfy the rational basis standard, it
also likely would satisfy a strict scrutiny analysis, see
Chelsea Collaborative, Inc., 480 Mass. at 35 (to satisfy strict
scrutiny, regulation "must be narrowly tailored and advance a
compelling state interest"), as well as the intermediate level
of scrutiny -- "less exacting than strict scrutiny but more
searching than mere rational basis review" -- advocated by the
concurrence in the Chelsea Collaborative decision. See id. at
53 (Gants, C.J., concurring) (which "would consider whether the
Commonwealth's asserted interests in imposing the restriction
are legitimate, whether the restriction in fact serves those
interests, and whether the restriction is 'precisely drawn' to
do so, weighing each of these factors in order to ascertain
whether the burden on voting rights is justified").