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High court justices seem wary of GOP effort to nix new law that expanded voting access

Justices for the state’s highest court heard arguments from the Massachusetts Republican Party challenging a new law making expanded early voting and no-excuse mail voting permanent. During the height of the COVID-19 pandemic, no-excuse mail-in voting was temporarily allowed to keep voters safe from the coronavirus.Stephanie Zollshan/The Berkshire Eagle via AP

Justices for the state’s highest court reacted with confusion and quizzical responses as they heard arguments from the Massachusetts Republican Party challenging a new law making expanded early voting and no-excuse mail voting permanent.

During the Supreme Judicial Court oral arguments, which were held Wednesday morning on Zoom, a lawyer for the party presented his argument that the VOTES Act, which Governor Charlie Baker signed into law last month, violates a part of the state constitution that says absentee voting is only allowed if a voter would be out of town for Election Day, had a religious-based conflict on Election Day, or a disability.

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During the height of the COVID-19 pandemic, no-excuse mail-in voting was temporarily allowed to keep voters safe from the coronavirus.

Lawyers from the attorney general’s office representing Secretary of State William F. Galvin argued that mail voting is a form of early voting, and that Article 105 in the constitution that lays out absentee voting rules “sets a floor for what the Legislature can do, not a ceiling.”

With the new law, Massachusetts joined 26 states and Washington, D.C., to make permanent “no-excuse” absentee voting, according to the National Conference of State Legislatures.

The Republican party had requested for an injunction to block Galvin, who oversees elections, from sending ballot applications to more than 4.7 million voters by July 23.

“To think that expanding absentee ballot voting means that we now all of a sudden send applications to 4.7 million households, I don’t think that’s consistent with the constitution,” state GOP party chair Jim Lyons told the Globe in an interview. “It doesn’t make any sense.”

But millions of dollars in postage have already been purchased, and the proofs for ballot design and signage have been approved. Galvin said, for now, his office is waiting on the court’s green light. He had asked the high court rule by the 23rd to avoid sending ballots that could potentially be out of line with the law.

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The court took up the case uncharacteristically fast and is expected to make a decision soon.

Michael Walsh, a Lynnfield lawyer who represented the state party and other plaintiffs, told justices Wednesday that mail ballots go beyond the constitutional definition of an absentee ballot; said that the Legislature does not have the power to make laws that go beyond the state constitution; explained that mail ballots introduce the potential for fraud; and called primary elections “a state-subsidized poll.”

Supreme Judicial Court Associate Justice Scott L. Kafker said during Wednesday’s hearing that Walsh’s argument has “nothing to do with voting absentee” and emphasized that the part of the constitution Walsh references does not apply to primary elections.

“None of this applies to primaries. None of it,” he said. “The constitutional provisions you cite, all the cases . . . you have no argument on the primary, right? “

The justices also questioned the lawyer about his stance that early voting in the early 20th century is how the process was meant to be, where ballots were handed over to an elected official and not counted until Election Day. The rise of ballot boxes “takes away” from the intended amendment to the constitution, Walsh said.

“We have been doing early voting for years now,” Kafker, the associate justice, said. “So every one of those election were illegal in your view?”

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Walsh argued, “decisions no matter how old or how bad, they deserve to be overturned.”

Justice Elspeth B. Cypher responded to Walsh, saying, “that is also what they used in Dobbs, so I am not sure it’s a good argument,” referring to a recent Supreme Court decision that reversed the constitutional right to abortion.

The justices questioned Walsh about the basis for the party’s unfounded allegations that mail-in ballots result in voter fraud, an argument that was made in Walsh’s brief and restraining order, both filed with the court.

“It’s not an allegation that fraud is occurring,” Walsh said. “As a system, it’s more susceptible to irregularities or frauds than voting in person.”

During their rebuttal, lawyers from the attorney general’s office argued that no-excuse mail-in voting is in line with the constitution, as it can be considered a form of early voting, not an expansion of constitutionally mandated absentee voting.

Adam Hornstine, an assistant attorney general, told justices Wednesday that expanding early voting to include no-excuse mail ballots isn’t a constitutional correction, but instead builds on the floor set by the state constitution.

“Here, respectfully, Article 105 contains no explicit limitation . . . early voting or early voting by mail wasn’t on the minds of the framers,” Hornstine said. “Though there may be some practical similarities between what is considered absentee voting and what is considered early voting by mail, the two have a different origin and the two have a different genesis.”

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Wednesday afternoon lawmakers and advocates from groups like Common Cause Massachusetts, the ACLU and the League of Women Voters gathered in front of the State House to celebrate the new law, as Baker did not hold a public bill signing. Most attendees watched the oral arguments earlier in the day, and told the Globe that they felt confident the court will rule in their favor.

Senator Barry R. Finegold, the lead negotiator on the VOTES Act, told the Globe he respects the judicial process and the right of the Republican party to challenge the new law, but defended the bill as “sound legislation.”

“At the end of the day, the more people who participate in elections, democracy wins. That is good for everyone,” the Andover Democrat said.

Senator Cynthia S. Creem, Senate majority leader and a member of the Senate’s negotiating team, said she expects the court will rule in the state’s favor and set a precedent that will support future election reform bills.

Creem, a Newton Democrat, said she’ll be filing legislation to allow for same-day voter registration next year, a provision that the House did not support this year and ended up being stripped out of the final version of the bill.

“I just want so badly for people to realize that you have to make this easy for people,” she said. “Everything is at the state [level] now, and I think it’s just so important that we make sure our state is a leader on something like this.”

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CORRECTION: An earlier version of this story misattributed a quote about the US Supreme Court’s recent abortion decision. The comment was made by Justice Elspeth B. Cypher.


Samantha J. Gross can be reached at samantha.gross@globe.com. Follow her on Twitter @samanthajgross.