SJC Ponders: Can Ballot Papers Be Signed? Sealed? Delivered?…
UPDATED 4/17/20 4:30PM: On Friday, the SJC accepted the Secretary’s recommendation, slashing the needed signatures by half, extending the deadline for state candidates by one week to May 5 and allowing electronic signatures, albeit a little more broadly than the the Secretary recommended.
The Massachusetts Supreme Judicial Court (SJC) heard oral arguments Thursday as part of an emergency petition to modify ballot access laws during the COVID-19 outbreak. Three candidates seeking various offices, one Republican and two Democrats, have sought changes to the signature-gathering process, the following of which they claim, is impossible and/or cost prohibitive in the current environment.
Since social distancing policies have effectively quashed all in-person campaigning, including the collection of signatures for the ballot. Ergo, the outbreak has made the signature requirements unconstitutional because they effectively inhibit the right to seek office. Represented by the office of Attorney General Maura Healey, the state’s election chief, Secretary of State William Galvin, agreed some modifications were appropriate, but felt some of the Plaintiffs’ solutions went overboard.
During oral arguments, which Suffolk University’s Law School streamed live over YouTube, the SJC agreed that some action was necessary. However, the justices evinced a spectrum of reluctance on stepping out too far, especially given the possibility of legislative action.
Indeed, Anne Sterman, the assistant attorney general representing Galvin in today’s arguments, noted during the argument that the Massachusetts Senate had just passed its bill to cut the signature thresholds for candidates who need 1000 or more signatures. The bill’s had been delayed earlier this week.
The candidates who filed the suit are Kevin O’Connor, a Republican running for US Senate; Robbie Goldstein, a Democratic primary challenger to US Rep Stephen Lynch in the Democratic primary; and Melissa Smith a Democratic primary challenger to State James Murphy in the 4th Norfolk District. They must gather 10,000, 2000 and 150 signatures for their respective races.
Robert Jones, an attorney with Boston-based firm Ropes & Gray, represented them during oral arguments.
The suit only affects candidates running in the September 1 primary. Independent candidates in the general election have deadlines in August.
The outbreak of COVID-19 has forced governments worldwide to shut down businesses and public gatherings to limit spread. On March 23, Governor Charlie Baker ordered the closure of all non-essential business. Nominally, this includes political campaigns, but the bigger problem is the accompanying bar on gatherings of 10 or more.
Courts in Massachusetts have had to adapt, too, limiting operations to essential matters. Thursday’s arguments were held via teleconferencing software to maintain social distancing, though technical difficulties bedeviled the proceeding at times.
In oral arguments, Sterman, responding to Chief Justice Ralph Gants, confirmed that, under the present circumstance, the current law was unconstitutional. Both parties had raised as much in their briefs.
Sterman said the Secretary was unable to unilaterally make changes to the signature requirements, the dates to submit signatures to local election offices for certification or allow electronic signatures. Only a court order could do that.
Nor was there much disagreement that, under normal conditions, the signature requirements were valid. However, the parties split on the remedy.
Plaintiffs, by contrast, argued the circumstances made signature requirements entirely unconstitutional. What compelling interest the government has in managing elections via signature-gathering must fall during the outbreak lest the right to seek office be harmed.
While not bailing on that demand entirely, Jones, echoing Plaintiff’s reply brief, suggested the court slash the signature requirement relative to the time lost to gather signatures. That would be by 2/3 counting from the governor’s order to April 28 when state candidate signatures are due for certification. Federal candidates have another week. However, Plaintiffs would want the right to collect electronic signatures and due dates moved where possible.
Sterman preferred to hew to the Senate bill, as the only semblance of legislative intent the parties had. The Secretary and Sterman also argued obtaining signatures for state rep and senator candidates—only 150 and 300 respectively—is less logistically complex than it is candidates who must collect thousands and return them to upwards of 351 local offices.
The space to move dates is limited. Local election offices have a couple of weeks after the due date to certify signatures and then candidates must turn them into the secretary’s office. Following deadlines for election offices to certify signatures, state and federal candidate must bring their papers to the Secretary by late May 26 and June 2 respectively.
However, ballots must be finalized and supplied to local election offices by mid-July to meet a federal deadline for mailing out military absentee ballots. Challenges to signatures before the State Ballot Commission—and potentially the courts—must be adjudicated during this window.
The SJC justices were unimpressed with the notion of voiding the signature requirement entirely.
“That eliminates the statutory purpose of getting at least some number of people to demonstrate that someone has a meaningful level of support in the district, right,” Justice Scott Kafker said. “Then we’re wiping out the purpose of the signature requirement all together instead of just trying to refine it.”
Jones acknowledged that campaigns have been able to gather signatures, “it’s just been distanced and by mail and a lot less efficient and lot slower.” However, he added, the looming threat of COVID-19 had put a crimp in signature-gathering even before the governor’s orders.
While Jones was amenable to electronic signature-gathering—preferably more broadly than the Secretary proposed—he said that would not fix everything. The signature threshold, he argued, were tailored to in-person canvassing, not online solicitations, which would yield fewer signatures.
After word came out about the Senate’s passage of its signature bill, the justices peppered Sterman with questions about whether and how the whole legislature would act. The House could act on the bill quickly—or not at all. Speaker Robert DeLeo has kept his cards close on the issue.
Sterman also suggested the court could set a deadline for legislative action. Yet, she acknowledged, legislative action could also change the legal constitutional analysis.
The justices also took a dim view of the Secretary’s rather limited recommendation for the use of electronic signatures. In his brief, the Secretary suggested electronic signing be limited to potential signers downloading the signature sheet and then signing electronically to be mailed back to the campaign. Other methods, the brief continued, present cybersecurity and accessibility issues.
Justice David Lowy posited that broad use of electronic signatures would be the least intrusive way to remedy the situation. Sterman countered that would limit evidence should a ballot sheet be challenged. While local election offices and the secretary do not investigate signatures for fraud—they merely authenticate the signer’s eligibility and count the signatures—the Ballot Commission does.
Justice Kafker picked up on that point asking if ID was needed to sign signature papers. Sterman said signers did not need to do so. If there was still an actual signature, however digitally rendered, Kafker continued, as opposed to typed onto the form, there would still be evidence the Ballot Commission could consider.
However, Gants questioned whether the electronic option was sufficient alone.
“Is it not fair to say that if we were to rely entirely on an electronic signature solution, there are some who could say that favors those individuals who are not only technologically savvy but who have the resources to have computer systems and some sophistication to use them?” Gants asked.
Sterman conceded electronic signatures present some inequities, but these did not necessarily render them unable to solve the constitutional issues alone.
Gants also asked when the House might meet to pass the Senate’s bill—Governor Baker has already signaled support. The House is set to meet tomorrow and then on Tuesday. That schedule may dictate how quickly the SJC rules.
Ultimately, the court opted not to wait. In a Friday opinion written by Chief Justice Gants, the court ordered that the signatures threshold for all candidates–not just those who need 1000 or more–be cut in half. It also pushed the deadline to turn in signatures to local election officials out one week, matching it with the federal deadline.
The court also ordered the allowance of electronic signatures, albeit a bit more liberally than the Secretary appeared to prefer. It is possible for the signer to use a mouse or touchscreen to sign and return that electronic format to the candidate. The candidate would still need to present a hard copy to election officials.
New SJC release now available: Goldstein v. Secretary of the Commonwealth, SJC-12931. https://t.co/StW5SHlTjC
— Mass. Reporter (@MassReports) April 17, 2020
Justice Kafker, who sounded the most skeptical note of all the justices, concurred with the decision, but restated his belief that allowing only electronic signatures would have been the solution least intrusive to the powers of the legislature.
The opinion only affects candidates seeking to be on the 2020 primary election ballot. Non-party candidate for the general election and ballot question signatures thresholds and deadlines remain in effect.