The state’s highest court is moving with uncharacteristic swiftness to weigh a recent challenge by the Massachusetts Republican Party that argues a new law that makes universal mail-in voting permanent is not constitutional.
At stake is the VOTES Act, a sweeping election law that makes no-excuse mail-in voting permanent, expands early voting options, and implements post-election audits, among other reforms. The law offers millions of Massachusetts voters the ability to vote before primary and general election days from the comfort of their homes with no reason needed.
With two months until this year’s Sept. 6 primary, time is of the essence. Oral arguments are set for Wednesday morning, less than two weeks after the Republican Party filed its lawsuit, which claimed mail ballots introduce the potential for fraud in elections.
Meanwhile, Secretary of State William F. Galvin is readying to send ballot applications to more than 4.7 million voters by July 23, he said. Millions of dollars in postage have already been purchased, and the proofs for ballot design and signage have been approved. He said, for now, his office is waiting on the court’s green light.
“Due to the significant time constraints in this matter, and because the complaint raises wide-ranging and novel constitutional challenges to the new election law implicating the fundamental right to vote, I hereby exercise my discretion to reserve and report the matter to the full court for decision,” Supreme Judicial Court Associate Justice Scott L. Kafker wrote in an order last week.
Before the new legislation was enacted, state law allowed for absentee voting if a voter would be out of town for Election Day, had a religious-based conflict on Election Day, or a disability. During the height of the COVID-19 pandemic, no-excuse mail-in voting was temporarily allowed to keep voters safe from the coronavirus.
In 2020, more than 3.6 million residents cast ballots in the state’s general election. Of those, about 42 percent voted by mail, 23 percent voted early in person, and only about 35 percent voted on Election Day.
The wide-ranging VOTES Act, signed into law by Governor Charlie Baker last month, makes vote-by-mail a permanent option in the state, and would also increase ballot access for voters with disabilities and overseas military and ensure that eligible voters who are incarcerated can request a mail-in ballot, among other provisions.
With the law, Massachusetts joined 26 states and Washington, D.C., to offer “no-excuse” absentee voting, according to the National Conference of State Legislatures.
But with the COVID-19 emergency no longer in effect, the Republican Party argues that the method should not be made permanent, claiming that mail-in voting is “vulnerable to fraud” and that, ultimately, the Legislature does not have the power to make laws “contrary to this constitution.”
The chairman of the Massachusetts Republican Party, GOP candidates for state and federal office, a member of the Massachusetts Republican State Committee, and a member of a ballot question committee challenged the law the day after Baker signed the bill, and sought an emergency temporary restraining order to enjoin Galvin from implementing the VOTES Act for the primary and general state elections. Last Tuesday, Galvin’s office filed a motion to dismiss the complaint and an opposition to the motion for a temporary restraining order.
In a 71-page brief filed Tuesday morning, the Republican Party made their case against the Legislature’s authority to enact the VOTES Act, arguing that “this case is not, substantially, about voting rights but rather about the power of the Legislature to enact the current measures in relation to absentee and early voting.” The brief challenges all parts of the VOTES Act, not just the mail-in voting piece.
“The Legislature, in the VOTES ACT, clearly wanted to push the envelope of its power,” the party’s lawyer wrote.
In the original 32-page complaint, the plaintiffs also argued that “since absentee ballots are not cast at the polls, the potential for fraud, undue pressure being placed on the voter, or someone other than the voter completing the ballot is much greater.”
“We think the potential for fraud, while not eliminated, is significantly lessened when votes are cast in person at the polling place, even by voters on an inactive voters list,” he wrote.
Galvin told the Globe Tuesday: “the only thing fraudulent here are their arguments.”
“This is more a political stunt than it is a credible legal challenge,” he said.
Attorney General Maura Healey filed an 87-page brief Tuesday defending the new law on behalf of Galvin’s office, arguing that the VOTES Act makes it easier for qualified voters to cast their ballots, and that the new law “reflects the most recent, reasoned judgment of the Legislature on how best to regulate the manner of elections in the Commonwealth.”
She called the Republican Party’s argument against the law “threadbare,” arguing that their brief “fails to articulate a single plausible claim that anything in the VOTES Act poses a threat to secure voting.” She also characterized the Republican Party’s arguments as “scaremongering,” asserting that the new law is in line with the state constitution.
GOP Party Chair Jim Lyons declined to comment ahead of the arguments, but said in a statement last week that the state Legislature “violated the Constitution when it made emergency pandemic-era mail-in voting laws permanent.”
“When we take something special like Election Day and expand it into Election Month . . . we are harming people’s time-tested faith in our elections, and that trust is something we can never get back once it’s gone,” he said.
Voting rights advocates who worked on the VOTES Act legislation say the GOP’s lawsuit puts up an “unnecessary barrier” to the implementation of the law, which is wide-ranging.
Geoff Foster, of Common Cause Massachusetts, said he is confident the court will rule in the state’s favor, and that lawmakers will feel emboldened to further expand voting access, such as passing laws to allow same-day voter registration or to lower the voting age to 16 for local elections.
“The hope here is that this could make the green light even brighter for the Legislature to take further action to make access to voting even stronger,“ said Foster, who filed an amicus brief in the case. “It will be important to have the precedent.”
At an unrelated event in Springfield Tuesday, Baker said he felt it was important that the courts make the final decision sooner rather than later.
“I think it’s appropriate that they take the case early,” he said. “Because they know it’s important that this issue be resolved before we have an election under the new rules.”
Globe correspondent Simon Levien contributed to this report.