A bipartisan group of candidates is asking Massachusetts’ highest court for relief from state laws requiring that they and other candidates gather hundreds or even thousands of signatures during a deadly pandemic to get on the ballot this fall.
The emergency petition, filed with the Supreme Judicial Court, argues that enforcing current election law during a public health emergency places unconstitutional restrictions on ballot access and on the right of voters to cast ballots for their preferred candidates.
The plaintiffs are asking the court to loosen the state’s existing signature requirements for all candidates — perhaps by reducing the number of signatures required or extending the deadline by which candidates must turn in those signatures.
“Without immediate relief from this Court, Petitioners and all other candidates similarly situated will face an impossible choice: risk their health and the health of voters in a futile effort to satisfy unjustifiable and unachievable ballot restrictions — or give up on their candidacy,” the plaintiffs argue in the court filing. “It is no way to conduct an election, not in a Commonwealth that has declared that all elections ought to be free.”
The petition was filed by Kevin O’Connor, a Republican attorney who is running for US Senate; Dr. Robbie Goldstein, a Democrat challenging incumbent US Representative Stephen Lynch; and Melissa Bower Smith, a Democrat from Hingham who is challenging incumbent Democratic Representative James M. Murphy for his South Shore seat.
The plaintiffs are being represented pro bono by Ropes & Gray, a top Boston law firm.
The lawsuit follows mounting appeals from candidates and other state officials for the Legislature to pass emergency legislation to significantly reduce the number of signatures candidates need to qualify for the Sept. 1 primary ballot.
The heads of both the state Democratic and Republican parties have endorsed legislation introduced by state Representative Patrick J. Kearney, a Democrat from Scituate. So has Attorney General Maura Healey. But so far leaders in the state House and Senate have not advanced the legislation.
“Their indifference is completely inappropriate,” O’Connor, the Republican Senate candidate, said in an interview of the Legislature’s inaction. "The only people who don’t want to change the law are incumbents, who at this point are clearly focused on self-preservation.”
While the plaintiffs are suing Secretary of State William F. Galvin, Galvin has said he does not have the authority to waive the requirements and any changes would require action by the Legislature. A spokeswoman for his office said she cannot comment on pending litigation.
Senate President Karen E. Spilka said she favors lowering the signature thresholds “for offices that require a large number of signatures during this public health crisis." In a statement to the Globe she said she has been working with other senators “to reach consensus” on the issue.
“We must find a way to ensure that those who decide to run for public office can demonstrate the necessary support they have in their communities without endangering their health or the health of others,” she said.
A spokeswoman for House Speaker Robert A. DeLeo declined to comment.
Governor Charlie Baker supports a legislative fix.
“The Baker-Polito Administration is open to reducing the signature threshold, and is aware of the difficulty the pandemic has created for ballot access, particularly for county and federal candidates who are required to collect over one thousand signatures," a spokeswoman said via e-mail. “The administration is confident that changing these requirements require statutory action and is open to working with Legislature.”
Kearney, the author of the legislation that would reduce by two-thirds all signature requirements, said he’s encouraged by the support his bill has picked up in the two weeks since he introduced it.
“This isn’t out of panic for myself,” he said, noting that he has already qualified for the ballot. “This is to continue to support democracy. This [pandemic] is an unexpected barrier to entry.”
The social-distancing restrictions put in place have shut down normal campaigning, complicating candidates’ ability to solicit people to sign their nomination papers. No longer can campaign organizers and volunteers head out to supermarkets and town meetings armed with clipboards and pens.
The restrictions have even put incumbent Senator Edward J. Markey, Democrat of Malden, in danger of not collecting the signatures he needs.
The burden, however, is far greater for down-ballot candidates.
The challenge has prompted creativity. Jesse Mermell, who is one of at least 10 candidates competing in the Fourth Congressional District primary, has been reaching out to supporters via social media and phone banking to ask if the campaign can mail them the paperwork.
Other candidates have asked voters to sign online forms to have papers mailed to them, while others have tried leaving papers on porches or in front yards, asking passersby to sign.
“Being a candidate in COVID-19 is not for the faint of heart,” said Brandy Fluker Oakley, a Democratic attorney from Mattapan who is running for the seat being vacated by state Representative Dan Cullinane.
Among the challenges, she noted, is that gathering signatures typically is a chance to make a pitch to voters. The virus makes that tough, so “as a candidate I have to work even harder to win support."
Requirements for signatures and deadlines to turn them in vary by office, ranging from 150 for a state representative to 10,000 for US Senate. Candidates affiliated with a party running for statewide and federal offices must collect signatures of certain registered voters by May 5. Those signatures must be verified by town and city clerks, and then submitted to Galvin’s office, by June 2.
Those running for non-federal offices must turn in their signatures to clerks by April 28.
Because there’s no guarantee that every signature will pass muster with the clerks, candidates typically collect far more than the minimum.
Goldstein, an infectious disease specialist at Massachusetts General Hospital, said he’s participating in the lawsuit not to make it easier for his own name to show up on the ballot Sept. 1; he intends to meet the requirements regardless of court or legislative action.
“This is about democracy and making sure everybody’s voice is heard,” Goldstein said.