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Law360 (August 24, 2020, 5:16 PM EDT ) Lawyers for Massachusetts' top elections official told the state's high court Monday that voters aren't disenfranchised if they don't get their mail-in ballots with enough time to send them back through the U.S. Postal Service to meet the deadline to be counted in the state's Sept. 1 primary election.
Arguing before the Supreme Judicial Court that voters have an "entire menu of options available for them" to cast a ballot, Assistant Attorney General Anne Sterman said people can still vote in person or drop their ballots off at a drop-box or local elections office.
"They still have options," Sterman told the justices. "We disagree that any voter is per se disenfranchised by operation of the deadline."
The legal challenge is being led by Newton City Councilor Becky Grossman, who is running for Congress. In the suit, she and others claim there is not enough time for voters to request a mail-in ballot by the Aug. 26 deadline, receive it, and then return it through the mail to local officials by election day.
The suit cites the U.S. Postal Service's advice that voters allow seven days for ballots to make it back to their local elections office to be counted. That would mean voters would need to mail the ballots by Aug. 25 — one day before the deadline to request one.
The petitioners are asking the court to order that mail-in ballots postmarked by the Sept. 1 primary election and received by Sept. 11 are counted.
"We have the virtual guarantee, the mathematical certainty that there will be untold voters who, according to the Postal Service and according to the secretary, won't even get their ballots in time to mail them in," said Jeffrey S. Robbins of Saul Ewing Arnstein & Lehr LLP, who represents Grossman and the petitioners. "The deadline is irrational. It is inherently absurd."
Secretary of the Commonwealth William F. Galvin's office argued it needs all the time it can get to finalize the November ballot after sorting out any potential recounts and challenges made to the State Ballot Law Commission.
Associate Justice Scott L. Kafker pressed Robbins on whether restrictions on voters' ability to cast a mail-in ballot amount to full-blown disenfranchisement.
"It is a right to vote, not a right to vote by mail, right?" Kafker asked.
According to the First Circuit, Robbins said, "the effect is the same."
He pointed to the First Circuit's decision two weeks ago in Common Cause Rhode Island et al. v. Gorbea et al., where the court struck down a requirement that mail-in ballots be notarized and signed by witnesses.
The court said "determined and resourceful" voters certainly could jump through whatever hoops necessary to cast a vote during the pandemic, but it's just as confident that the burdens to safely find a notary and witnesses are more significant than the type of difficulties voters are "generally expected to bear."
"Taking an unusual and, in fact, unnecessary chance with your life is a heavy burden to bear simply to vote," the appeals court said in that case.
Associate Justice Frank M. Gaziano asked Robbins whether "deference" is due either to state lawmakers who set the deadline or to Galvin, whose office oversees elections and is responsible for finalizing the state ballots 45 days before the general election to comply with federal law.
"The burden on this vote is so high that there isn't deference," Robbins replied. He again referred to the First Circuit's decision, the SJC's opinion changing signature requirements for candidate nomination papers due to the pandemic, and the Massachusetts attorney general's filing in a federal lawsuit in Pennsylvania seeking to reverse recent changes at the U.S. Postal Service that have been blamed for mail delays.
"To simply say, we may be challenged — at a minimum, the secretary ought to be able to demonstrate that there is a real serious, meaningful likelihood of being unable to do it," Robbins said.
Associate Justice Kimberly S. Budd said the recent changes at the Postal Service and resulting delays had changed her mind about requesting a mail-in ballot.
"I was going to request a mail-in ballot; then it sounded like, 'Gee, it may not be the best way to go,'" Justice Budd said. "I'm not comfortable, it may not work, and you're confirming to me that it may be the case."
Sterman attempted to assuage concerns that upheaval at the Postal Service is causing delays with ballots.
While the post office stopped deeming all voter mail to be first class, Galvin had the state pay the extra postage to have the ballots be sent with the first-class mail.
"The secretary has done what he can within his power to make sure to pay with additional postage, to make sure the mail is treated in the best way by the Postal Service," Sterman said.
Grossman and the other petitioners are represented by Jeffrey S. Robbins of Saul Ewing Arnstein & Lehr LLP.
The state is represented by Anne Sterman of the Office of the Massachusetts Attorney General.
The case is Grossman et al. v. Galvin, case number SJC-12996, in the Supreme Judicial Court of Massachusetts.
--Editing by Janice Carter Brown.
For a reprint of this article, please contact reprints@law360.com.
