Law360 is providing free access to its coronavirus coverage to make sure all members of the legal community have accurate information in this time of uncertainty and change. Use the form below to sign up for any of our weekly newsletters. Signing up for any of our section newsletters will opt you in to the weekly Coronavirus briefing.
Sign up for our Appellate newsletter
You must correct or enter the following before you can sign up:
Thank You!
Law360 (August 26, 2020, 5:08 PM EDT ) Massachusetts voters sending mail-in ballots for the Sept. 1 primary election will not get extra time for their votes to reach local officials, despite the U.S. Postal Service warning that delivery delays could render some ballots uncounted, the state's top appellate court said Wednesday.
The ruling denied a request by Becky Grossman, a Newton city councilor who is running for Congress, and others for a 10-day extension for mail-in ballots to be counted in the primary election, which the plaintiffs said would avoid a scenario in which people who requested ballots within the new law's deadline were not able to return them in time due to postal slowdowns.
"There is no constitutional right to vote by mail," the Supreme Judicial Court said, in an opinion penned by Associate Justice Scott F. Kafker.
The court said voters have multiple options in addition to voting by mail — even though that method may be safest during the pandemic.
"The Sept. 1 deadline for voting, which applies equally to voting by mail as well as in-person voting, does not significantly burden the right to vote given the multiple options available to voters." the court said.
The Supreme Judicial Court acknowledged the "many voters, including those over the age of 65 and those with preexisting conditions, for whom the coronavirus has proved so lethal." Among that group, the court said, "voting with minimal or no personal contact is rightly viewed as their only option."
But other contactless options are available, such as local ballot drop boxes, the court said.
Acknowledging the key timing issue — some voters may request ballots with too little time for the ballots to be mailed to them, then returned and counted — the court said the Legislature "may have been overly optimistic to expect" the quick turnaround would work. Lawmakers also "could not have anticipated the recent Postal Service problems," the court said.
It was a July 30 letter from the Postal Service's general counsel that injected such urgency into the primary deadline. The letter said the deadlines for mail-in ballots were "incongruous" with the service's delivery standards, and it urged voters to mail ballots at least a week before Election Day.
Lawyers from the state argued Monday that the possibility that some people with mail-in ballots wouldn't be counted because they received them too late didn't mean they were disenfranchised.
The court agreed Wednesday, saying the firm Sept. 1 deadline is reasonable. It allows time for nomination challenges and recounts to play out and to comply with a federal law mandating states have finalized general election ballots completed 45 days ahead of Election Day so Americans overseas have time to get their ballots and vote, the court found.
Grossman's attorney, Jeffrey S. Robbins of Saul Ewing Arnstein & Lehr LLP, said in a statement that "the fight for Massachusetts voters who in the real world are struggling to cope with this pandemic and the burdens it is placing on them and their families is one worth making."
"It remains indisputable that untold numbers of Massachusetts voters who want to avoid the risks posed by this pandemic and still exercise their right to vote are burdened by a system that makes it a certainty that they will not be able to vote in this primary," Robbins said. "That is disappointing."
In a statement, Secretary of the Commonwealth William Galvin said he appreciated that the court "recognized the complexity of the election schedule."
"This will allow my office to begin preparing November ballots immediately after the primary results are in, so that voters will have plenty of time to receive and return their ballots before Election Day," Galvin 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 Stephen Berg.
For a reprint of this article, please contact reprints@law360.com.
