ROBERT GOLDSTEIN1 & others2 vs. SECRETARY OF THE COMMONWEALTH.
SJC-12931
Supreme Judicial Court of Massachusetts
April 17, 2020
Suffolk. April 16, 2020. - April 17, 2020. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us
Elections, Ballot, Validity of nomination papers. Secretary of the Commonwealth. Constitutional Law, Elections.
Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 8, 2020.
The case was reported by Cypher, J.
Robert G. Jones for the plaintiffs.
Anne Sterman, Assistant Attorney General, for the defendant.
Thomas O. Bean & James D. Henderson, for Ranked Choice Voting 2020 Committee, amicus curiae, submitted a brief.
GANTS, C.J. On April 8, 2020, the plaintiffs, each of whom seeks to be a candidate for elective office in the primary election scheduled for September 1, 2020, brought an emergency petition in the county court, seeking relief under
The plaintiffs do not contend that the minimum signature requirements in
The Secretary of the Commonwealth (Secretary) agrees that, “as a practical matter, application of the signature requirements in the context of the current public health crisis imposes a greater than usual burden on [the plaintiffs], triggering heightened scrutiny.” The Secretary also agrees that, in this time of pandemic, the justification for the current signature requirements cannot survive this scrutiny, and that this court must craft a remedy for this constitutional violation. We also agree, and fashion equitable relief intended to substantially diminish that burden, while respecting the legislative purpose for imposing minimum signature requirements.
In short, for all candidates seeking to appear on the State primary ballot on September 1, we order three forms of relief. First, we order that the number of required signatures be reduced by fifty percent (50%). Second, we extend the deadlines for candidates running for State district and county offices to submit their nomination papers to local election officials for certification and for the filing of certified nomination papers with the Secretary to May 5, 2020, and June 2, 2020, respectively, which are the current due dates for party candidates running for Federal and Statewide offices. Third, subject to the restrictions outlined later in this opinion, we order the Secretary to allow the submission and filing of nomination papers with electronic rather than wet-ink original
Background. 1. Ballot access.
This year, 2020, is an election year in Massachusetts for certain Federal,4 State,5 and county offices.6 The State primary election, in which candidates
affiliated with the various political parties (Democratic, Green-Rainbow, Libertarian, and Republican) are nominated to run for the offices at issue, is currently scheduled for September 1, 2020. See Secretary of the Commonwealth, A Candidate‘s Guide to the 2020 State Election, at 5 (rev. Feb. 2020) (2020 Candidate‘s Guide). The general election, in which the party nominees will compete against one another as well as against any nonparty candidates for the offices on the ballot, is scheduled for November 3, 2020. See id.
The three plaintiffs aspire to appear on the State primary election ballot in September in an effort to secure their respective party‘s nominations for three different Federal and State offices. Robert Goldstein seeks to be the Democratic Party‘s nominee for the office of United States representative for the Eighth Congressional District in Massachusetts. Kevin O‘Connor seeks the Republican Party‘s nomination for the office of United States senator. Melissa Bower Smith aspires to be the Democratic Party‘s nominee for the office of State representative for the Fourth Norfolk District.
a. Minimum signature requirements.
To appear on the ballot,
b. Certified signatures.
To qualify as “certified,” a signature must be of a voter registered in the geographic area corresponding to the office for which the candidate is seeking nomination. See
c. Nomination papers.
The process for obtaining and certifying the required number of signatures commences when the Secretary
d. Certification and filing deadlines.
The statutorily driven timeline that follows the receipt of the nomination papers from the Secretary has two major deadlines, which can differ depending on the office a candidate is pursuing. The first is the deadline by which the candidate must submit the nomination papers to local election officials for certification. At least twenty-eight days before the deadline for the submission of the certified nomination papers to the Secretary, the candidates must submit their nomination papers to local election officials in each city and town where the individuals who signed the papers are registered to vote.11 See
Applying regulations promulgated by the Secretary, see
The second major deadline, from which the first is calculated, is the date by which nomination papers certified by local election officials must then be filed with the Secretary. For candidates seeking election to State district and county offices, this deadline is on or before the last Tuesday in May of an election year, which, this year, means on or before May 26, 2020. See
e. Objection process.
Registered voters from the district in which a candidate seeks nomination have three days from the filing deadlines with the Secretary to file objections to nomination papers with the State Ballot Law Commission (SBLC). See
f. Preparation of ballots.
For any election in which a Federal office is at issue, Federal law mandates that ballots must be transmitted to military and overseas voters no later than forty-five days in advance of the election. See
2. COVID-19 pandemic.
On March 10, 2020, the Governor declared a state of emergency throughout the Commonwealth in response to the spread of COVID-19, where he invoked his statutory authority to “from time to time issue recommendations, directives, and orders as circumstances may require.” See Executive Order No. 591. The following day, the World Health Organization declared COVID-19 to be a global pandemic. On March 15, 2020, the Governor issued orders closing all public and private elementary and secondary schools, prohibiting public and private gatherings of more than twenty-five people, and prohibiting the on-premises consumption of food and drink at restaurants, bars, and other food establishments. Then, on March 23, 2020, he issued another executive order, further limiting public and private gatherings to no more than ten people and requiring all nonessential businesses to close their physical workplaces and facilities. See COVID-19 Order No. 13. See also COVID-19 Order No. 21. At his direction, the Department of Public Health (DPH) issued a “Stay-at-Home Advisory” the following day, declaring that it was “critically important” for everybody to “[o]nly leave home for essential errands such as going to the grocery store or pharmacy,” and that, when people do leave home, to “practice social distancing by staying [six] feet away from others.” DPH Public Health Advisory: Stay-at-Home Advisory (Mar. 24, 2020). On April 10, DPH issued another advisory recommending that people wear face coverings or masks when social
With the onset of the pandemic and the imposition of restrictions that followed, the plaintiffs and other candidates could not safely and reasonably gather voter signatures in the usual ways, namely, going to places where large numbers of potential registered voters are likely to be, such as town centers, malls, grocery stores, or political meetings. In the face of this predicament, the plaintiffs and other candidates wrote to the Secretary, seeking relief from the minimum signature requirements. The Secretary, however, maintained that he lacked the authority to act, and that only the Governor and Legislature could provide such relief.13 The Governor and numerous legislators have expressed their willingness to consider a legislative “fix” to the predicament, but bills that were introduced in the Legislature that would reduce the number of required signatures for those offices requiring 1,000 or more signatures by fifty percent, see 2020 Senate Doc. No. 2632, or by two-thirds for all offices, see 2020 House Doc. No. 4981. The Senate has engrossed its bill, but, as of the time this opinion was submitted, neither legislative “fix” had been enacted.
Discussion.
The right to seek elected office, like the related right to vote, is a fundamental constitutional right in Massachusetts. Article 9 of the Massachusetts Declaration of Rights provides, with impressive brevity and clarity, that “[a]ll elections ought to be free; and all the inhabitants of this commonwealth, having such qualifications as they shall establish by their frame of
As with many fundamental rights, the “court has sustained statutes which reasonably regulate elections and access to a place on the ballot.” Opinion of the Justices, 368 Mass. 819, 821-822 (1975). See Opinion of the Justices, 413 Mass. 1201, 1209 (1992), quoting Opinion of the Justices, 375 Mass. 795, 811 (1978) (“the right to be elected, preserved in art. 9, is not absolute but ‘is subject to legislation reasonably necessary to achieve legitimate public objectives‘“). In fact, the court has previously considered the same minimum signature requirements at issue here and concluded that they withstood constitutional scrutiny. LAM, 462 Mass. at 567. In that case, the plaintiff Libertarian party sought to transfer the certified voter signatures obtained by one candidate to another candidate in order to qualify the latter to be on the general election ballot. See id. at 545-546. The present case comes before the court under an entirely different set of facts and circumstances. The framework through which we analyze it, however, remains the same. When we evaluate the constitutionality of a restriction on access to the ballot, 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” (quotations, citations, and alterations omitted). Id. at 560. “Regulations imposing severe burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling state interest. Lesser burdens . . . trigger less exacting review, and a State‘s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions” (quotations and citations omitted). Id. More recently, recognizing that the Massachusetts Declaration of Rights may be more protective of voting rights than the Federal Constitution, we have declared that we do not use the phrase “severe burden,” which arises from Federal constitutional jurisprudence, in determining whether strict scrutiny applies but instead apply strict scrutiny to a voting requirement that “significantly interfere[s]” with the fundamental right to vote. See Chelsea Collaborative, Inc. v. Secretary of the Commonwealth, 480 Mass. 27, 35, 36 n.21, 40 (2018). We need not decide here whether the Massachusetts Constitution provides greater protections for the art. 9 rights at issue, because it is undisputed that, under the circumstances arising from this pandemic, we should apply strict scrutiny to the minimum signature requirements regardless of whether we apply a “severe burden” or “significant interference” formulation.
In ordinary times, the minimum signature requirements to appear on the ballot in Massachusetts only impose “modest burdens” on prospective candidates for public office, so “there need be only a rational basis undergirding the regulation in order for it to pass constitutional muster” (citation omitted). LAM, 462 Mass. at 567. And in ordinary times the rational basis threshold is “easily” met, as the “State‘s interest in ensuring that a candidate makes a preliminary showing of a substantial measure of support before appearing on the ballot is legitimate” (quotation, citation, and alteration omitted). Id. Minimum signature requirements ensure “that the candidates who appear on the . . . ballot have demonstrable support among the voting public.” Barr v. Galvin, 626 F. 3d 99, 111 (1st Cir. 2010), cert. denied, 565 U.S. 929 (2011). In doing so, they “safeguard the integrity of elections by avoiding overloaded ballots and frivolous candidacies, which diminish victory margins, contribute to the cost of conducting elections, confuse and frustrate voters, increase the need for burdensome runoffs, and may ultimately discourage voter participation in the electoral process.” Libertarian Party of Me. v. Diamond, 992 F.2d 365, 371 (1st Cir.), cert. denied, 510 U.S. 917 (1993).
But, as we have recognized, statutory requirements that were once considered constitutionally permissible may later be found to interfere significantly with a fundamental right as societal conditions and technology change. See Chelsea Collaborative, Inc., 480 Mass. at 37, citing Goodridge v. Department of Pub. Health, 440 Mass. 309, 341 n.33 (2003). And similarly, statutory requirements that in ordinary times impose only modest burdens on prospective candidates for public office may significantly interfere with the fundamental right to run for political office in a time of pandemic.
We need not dwell long on how dramatically conditions have changed in Massachusetts since the Governor first announced a state of emergency arising from the COVID-19 pandemic on March 10. All who presently live in the Commonwealth have
When people do encounter each other, they do so only by maintaining a “social distance” of at least six feet, and attempt to keep such encounters as brief as possible. Because it has been shown that one can carry and spread the COVID-19 virus without any apparent symptoms, every encounter with another person, especially a stranger, poses a risk of infection. Because it is not altogether clear how long the COVID-19 virus may “survive” on various surfaces and objects, people are reluctant to touch any pen or piece of paper that has been touched by another, at least unless they quickly can wash or sanitize their hands. Accordingly, if a candidate seeks to obtain signatures on nomination papers in the traditional ways, he or she reasonably may fear that doing so might risk the health and safety not only of the person requesting the signature but also of the persons who are signing, of the families with whom they live, and potentially of their entire community.
In short, as the Secretary rightly and readily acknowledges, the minimum signature requirements, which may only impose a modest burden on candidates in ordinary times, now impose a severe burden on, or significant interference with, a candidate‘s right to gain access to the September 1 primary ballot, and the government has not advanced a compelling interest for why those same requirements should still apply under the present circumstances. See LAM, 462 Mass. at 560. Indeed, it concedes that there is none. The minimum signature requirements, therefore, in this time of pandemic are unconstitutional as applied to the plaintiffs, and other similarly situated candidates.
If the Legislature had enacted a law on March 23 imposing harsh new requirements that made it substantially more difficult
obtain the required “wet” signatures in the midst of this pandemic. See LAM, 462 Mass. at 560.
The burdens imposed by the statutory minimum signature requirements are not inevitable. There are alternatives that could preserve the legislative purpose that a candidate demonstrate a certain level of support in order to win a place on the ballot and yet protect the public from the health risks associated with obtaining “wet” signatures.
As a general matter, the principle of separation of powers set forth in
The plaintiffs have requested various alternative forms of relief. Before we discuss the relief that is granted, we take a moment to address the requests for relief that we do not believe are justified.
The plaintiffs first request that we not only declare the minimum signature requirements unconstitutional as applied to them and similarly situated candidates during this primary election, but also declare the minimum signature requirements void. In effect, the plaintiffs seek to avoid the minimum signature requirements altogether and proceed directly to the September 1 primary ballot. We decline to order this remedy; the justification for the current statutorily prescribed signature requirements is outweighed by the burden those requirements impose under the present conditions, but there is still merit to having some signature requirements. Even in the midst of the pandemic, the State has a legitimate interest in ensuring that a candidate makes a preliminary showing of support among the electorate before appearing on the ballot. In addition, the pandemic has not completely deprived candidates of the ability to gather signatures. Between February 11, 2020, when the nomination papers were first made available, and March 23, 2020, when the first significant restrictions were imposed in response to the pandemic, candidates had forty-one days in which to gather signatures without any constraint. Since March 23, the process has become unconstitutionally burdensome, but not impossible. And the remedies we provide in this decision will permit additional signatures to be safely obtained. It
Given the looming deadlines, the plaintiffs also request, in the alternative, that we extend the deadlines for submitting nomination papers to local election officials and for filing the certified nomination papers with the Secretary. The Secretary, however, maintains that an extension beyond May 5 for submissions to local election officials and May 26 for filing with the Secretary is not workable, given the time needed for the SBLC to deal with any objections to the nomination papers, for the Secretary‘s office to prepare the 2,200 different styles of ballots required for the different jurisdictions in the Commonwealth, and for local election officials to then transmit the ballots by July 18 to military and overseas voters, as required by Federal law. The plaintiffs have not disputed the Secretary‘s timeline or his analysis of the problems that would arise from a greater extension, and we defer to his experienced judgment in this regard. Therefore, we will extend the deadlines only for candidates running for State district and county offices, and extend their deadlines only to match the deadlines that apply to party candidates running for Federal and Statewide offices: from April 28 to May 5 to submit nomination papers to local election officials for certification, and from May 26 to June 2 to file the certified nomination papers with the Secretary.
The plaintiffs have further requested, as alternative relief, that we “substantially” reduce the number of signatures required to get on the primary election ballot. The Secretary agrees, but suggests that the reductions should only apply to offices for which 1,000 or more certified voter signatures are currently required. This would preclude any reduction of the required minimum signatures for candidates for State senator and representative, who currently must secure 300 and 150 signatures, respectively, and for offices in certain counties (e.g., Barnstable County register of probate and Barnstable County commissioner), who currently need to obtain 500 signatures. We agree that, in light of the prevailing circumstances, the most equitable alternative is to reduce the number of signatures required. We do not agree, however, that it would be equitable to do so only for some candidates and not others.
Presumably, the number of signatures required for each office was established to reflect a balance between the number of people represented by the elected office and the burden involved in obtaining the signatures. Hence, a Statewide office such as United
In determining the percentage of the across-the-board reduction, the Secretary has suggested a reduction of fifty percent (50%), the same amount that has been proposed in one of the bills currently pending in the Legislature.15 We agree with that suggested percentage decrease. Fifty percent (50%) has a rational connection to the underlying constitutional violation. As noted supra, the candidates had forty-one days after the date when nomination papers were first made available (February 11) to gather signatures without any significant restrictions related to the pandemic. That all changed on March 23, when the Governor issued the order limiting public and private gatherings to no more than ten people, requiring all nonessential businesses to close their physical workplaces and facilities, and directing DPH to issue the Stay-at-Home Advisory, urging people to leave home only for essential errands and to practice social distancing when they did. Forty-one days is almost exactly fifty percent (50%) of the time between February 11 and May 5, which is now the deadline by which all primary candidates have to collect signatures and submit them to local election officials. Even if candidates were slow to start, it was significantly challenging, but not impossible, to gather signatures after March 23, and as discussed infra, candidates will now have some opportunity to obtain electronic signatures through May 5, so it should not be unfairly burdensome for a serious candidate to obtain one-half of the required signatures. The number of certified registered voter signatures required to get on the September 1 primary ballot, therefore, is reduced by fifty percent (50%) for all candidates.
The Secretary, however, has suggested one modest means to include electronic signature collection among our equitable remedies, which the plaintiffs find attractive, as do we. Specifically, the Secretary proposes that we order that candidates seeking to be on the ballot for the September 1 primary election be allowed to scan and post or otherwise distribute their nomination papers online. Voters may then download the image of the nomination papers and either apply an electronic signature with a computer mouse or stylus, or print out a hard copy and sign it by hand. The signed nomination paper can then be returned to the candidate, or a person working on the candidate‘s behalf, either in electronic form (by transmitting the “native” electronic document or a scanned paper document) or in paper form (by hand or mail). The candidates will still have to submit the nomination papers to local election officials in hard copy paper format, but the proposed process will alleviate the need for, and the risk associated with, obtaining
Conclusion.
For the reasons stated, the plaintiffs’ application for declaratory relief is allowed to the extent that we declare, in the limited context of the current pandemic, that the minimum signature requirements in
So ordered.
KAFKER, J. (concurring). Given the pressing need for immediate action during the pandemic, and the technological limitations in our existing electoral infrastructure identified by the Secretary of the Commonwealth (Secretary), I concur in the court‘s multifaceted remedy. I write separately, however, to express concern that those responsible for our electoral process have concluded that they are unable to solve the problem of in-person signatures with the more straightforward and targeted solution of electronic filing of signatures, and therefore have required the court to temporarily rewrite the election laws. Those responsible for our elections must have the technological tools to respond to the pandemic that confronts us, which has fundamentally changed the world as we know it. Leaving these electoral problems for the courts to solve should be a last resort.
When we declare an act unconstitutional, we must do so in the least intrusive and most judicious manner possible. See Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167 (1998) (“We
The fundamental issue here is the statutory requirement that nomination signatures be obtained “in person.” See
The least intrusive remedy to this constitutional deficiency would be one that carves out the in-person requirement and replaces it with its nearest equivalent: electronic signatures. This solution should be technologically feasible and relatively straightforward in the midst of a pandemic: use electronic nomination papers
Electronic signatures are the norm in the private sector and many areas of government. Even before automatic voter registration took effect, the Secretary maintained an online portal that allowed citizens to complete an online affidavit using an image of their electronic signature from the registry of motor vehicles to register to vote. See
One would think that, had electronic signatures been expeditiously approved for use on nomination papers by the Legislature and the Secretary, nothing more would be necessary to remedy the unconstitutional burden here. In an age dominated by social media sites like Facebook and Twitter, and one that requires sophisticated digital political campaigning, it is difficult to imagine that a viable legislative candidate for the State house or State senate would be unable to electronically alert and engage the 150 or 300 followers that the candidate needs to obtain electronic signatures to appear on the ballot. Those seeking Statewide office should also be able to satisfy their reasonable signature requirements if a readily accessible electronic signature process were adopted. Indeed, this would presumably be the norm if the technical capacities of our election infrastructure were anywhere near as sophisticated and adaptable as those of the private sector and other areas of government.
Unfortunately, according to the Secretary, election officials lack the technological capacity at this time to readily accept electronic
Nevertheless, because of the current technological limits on our election capabilities and the procedural requirements of the current process, candidates will be forced to continue to submit their nomination papers in hard copy form. According to the Secretary, we are limited to the following process for allowing electronic signatures. First, candidates will be permitted to electronically post or distribute their nomination papers. Then, voters must download the papers and either electronically sign, or print and physically sign, the document and return it to the candidate in electronic or paper form. The candidate will then be tasked with producing all voter signatures in hard copy paper format, and physically submitting his or her nomination papers to local officials for certification. At minimum, this awkward, multistep process will require candidates or campaign volunteers to risk exposure to the virus by venturing out, either to the post office or a local official‘s physical office, in order to deliver the nomination papers to election officials.
Allowing voters to submit their signatures electronically as part of this cumbersome process, by itself, is not enough to fix the problem. Indeed, the parties agree that this stilted approach to electronic signatures is not enough. Rather, given the apparent lack of technological capacity to readily accept and verify electronic signatures in a more straightforward manner –- even in the midst of a global pandemic -- this court is instead forced to impose
Unfortunately, these alternative remedies raise other constitutional issues. When we start to alter the numbers of signatures required to qualify for the ballot, we begin to stray into territory reserved for the Legislature. See Kenniston v. Dep‘t of Youth Servs., 453 Mass. 179, 189 (2009). While reducing the signature threshold by fifty percent may be a sound Solomonic solution, and roughly corresponds to the amount of time candidates have lost, this appears to be more of a policy choice best left to the Legislature, which can act with great dispatch when it chooses to do so.1 Nonetheless, in the instant case, at this last minute in the signature gathering process, and in the absence of legislative action, this court is forced to impose these alternative remedies itself to conform the election laws to constitutional requirements during the pending emergency. These remedies also appear to be the least intrusive ones available, in light of the deficient technological capabilities identified by the Secretary and the imminent approaching deadlines for submitting nomination papers.
In this “high tech” era, and in the midst of a global pandemic that severely restricts close personal contact, the failure to be able to solve manageable technological problems on the eve of an election is confounding and distressing. At a time when we need to be fundamentally rethinking what must be done in person and what can instead be done electronically, our electoral process seems dangerously unequipped to adapt to a new paradigm.
The COVID-19 pandemic has dramatically changed our current reality, not only in the Commonwealth, but across the globe, and not simply for a month or two. Despite the significant negative effects of this lockdown, health officials have urged the importance of maintaining quarantine efforts for the foreseeable future. Tozzi and Bloomberg, “Social distancing until 2022? It may be necessary, according to Harvard coronavirus researchers,” Fortune (Apr. 14, 2020) https://fortune.com/2020/04/14/social-distancing-until-2022-coronavirus-end-date-spread-covid-19-harvard-researchers/ [https://perma.cc/HQJ5-4257]. It remains to be seen when the current measures
Other States have adapted their election machinery to address the electronic signature problem. As the court observes, ante at note 16, Arizona has adopted a centralized system for allowing voters to electronically sign candidates’ nomination papers, called “E-Qual.” See https://apps.azsos.gov/equal/ [https://perma.cc/2HDB-YHSF]. The E-Qual website prompts voters to provide select personal information, which is then used to access their voter registration record. See id. Once their voter registration record has been identified, voters may electronically sign a candidate‘s nominating petition. See id. As the website boasts, this system allows voters to show their “support for a candidate from the comfort of [their] home[s] or anywhere [I]nternet access is available.” See id.
Despite the apparent lack of technological solutions available for purposes of the current election cycle, it would appear that the Commonwealth has the means to ameliorate this issue going forward, though not in time to address the issue before the court. As explained by the amicus, the Commonwealth is already expanding its acceptance of electronic signatures in other areas of election administration. Pursuant to legislation passed in 2018, the Commonwealth began implementing an automatic voter registration process on January 1, 2020. See
Municipal registrars therefore already have at least a growing database of electronic signatures of voters registered in the Commonwealth. It follows, then, that they should have the capability
In sum, while I agree with the court that the technological limitations described by the Secretary prevent us from replacing the in-person requirement with electronic signatures alone in the short time before the signatures are due, and require the multifaceted remedy the court proposes, I feel compelled to emphasize that those responsible for our election process must have the necessary tools to quickly adapt to the current pandemic and the future crises to follow. Absent such technological adaptability, our elections will be imperiled and our election laws may themselves have to be rewritten in the midst of a crisis, as was done here. That is an invitation to conflict and confusion that must be avoided.