Goldstein v. Secretary of the Commonwealth ( 2020 )

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SJC-12931
ROBERT GOLDSTEIN1 & others2 vs. SECRETARY OF THE COMMONWEALTH.
Suffolk. April 16, 2020. - April 17, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Elections, Ballot, Validity of nomination papers. Secretary of
the Commonwealth. Constitutional Law, Elections.
Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on April 8, 2020.
The case was reported by Cypher, J.
Robert G. Jones for the plaintiffs.
Anne Sterman, Assistant Attorney General, for the
defendant.
Thomas O. Bean & James D. Henderson, for Ranked Choice
Voting 2020 Committee, amicus curiae, submitted a brief.
GANTS, C.J. On April 8, 2020, the plaintiffs, each of whom
seeks to be a candidate for elective office in the primary
1 On behalf of himself and others similarly situated.
2 Kevin O'Connor and Melissa Bower Smith, on behalf of
themselves and others similarly situated.
2
election scheduled for September 1, 2020, brought an emergency
petition in the county court, seeking relief under G. L. c. 214,
§ 1, and G. L. c. 231A, § 1. They requested a declaration that,
in light of the emergency circumstances arising from the COVID-
19 pandemic, the signature requirements in G. L. c. 53, §§ 7 and
44 (minimum signature requirements), to be listed on the ballot
for a party's nomination pose an "unconstitutionally severe
burden on the fundamental rights" of all Massachusetts would-be
candidates. They seek, by means of this declaration, to
eliminate the minimum signature requirements for the September 1
primary election. In the alternative, they asked for various
forms of equitable relief, such as substantially reducing the
number of required signatures of certified voters, extending the
applicable filing deadlines, and permitting electronic
signatures, as a means of remedying the constitutional
violation. A single justice of this court reserved and reported
this petition to the full court.
The plaintiffs do not contend that the minimum signature
requirements in §§ 7 and 44 are facially unconstitutional; that
is, they do not contend that these requirements unduly burden
the constitutional right of a candidate to seek elective office
in ordinary times. Rather, they contend that these
requirements, when applied in these extraordinary times of a
declared state of emergency arising from the COVID-19 pandemic,
3
create an undue burden on a prospective candidate's
constitutional right to seek elective office.
The Secretary of the Commonwealth (Secretary) agrees that,
"as a practical matter, application of the signature
requirements in the context of the current public health crisis
imposes a greater than usual burden on [the plaintiffs],
triggering heightened scrutiny." The Secretary also agrees
that, in this time of pandemic, the justification for the
current signature requirements cannot survive this scrutiny, and
that this court must craft a remedy for this constitutional
violation. We also agree, and fashion equitable relief intended
to substantially diminish that burden, while respecting the
legislative purpose for imposing minimum signature requirements.
In short, for all candidates seeking to appear on the State
primary ballot on September 1, we order three forms of relief.
First, we order that the number of required signatures be
reduced by fifty percent (50%). Second, we extend the deadlines
for candidates running for State district and county offices to
submit their nomination papers to local election officials for
certification and for the filing of certified nomination papers
with the Secretary to May 5, 2020, and June 2, 2020,
respectively, which are the current due dates for party
candidates running for Federal and Statewide offices. Third,
subject to the restrictions outlined later in this opinion, we
4
order the Secretary to allow the submission and filing of
nomination papers with electronic rather than wet-ink original
signatures ("wet" signatures). We emphasize that the
declaration we make and the equitable relief we provide is
limited to the primary election in these extraordinary
circumstances, which is the sole subject of the case before us,
and does not affect the minimum signature requirements for the
general election this year or for the primary elections in any
other year.3
Background. 1. Ballot access. This year, 2020, is an
election year in Massachusetts for certain Federal,4 State,5 and
county offices.6 The State primary election, in which candidates
3 We acknowledge the amicus letter submitted by the Ranked
Choice Voting 2020 Committee.
4 Federal offices include electors of President and Vice-
President, United States senator (the seat currently held by
Senator Edward Markey), and United States representative (all
nine districts). See Secretary of the Commonwealth, A
Candidate's Guide to the 2020 State Election, at 5 (rev. Feb.
2020) (2020 Candidate's Guide).
5 Statewide offices include executive councilor (all eight
districts), State senator (all forty districts), and State
representative (all 160 districts). See 2020 Candidate's Guide,
supra.
6 County offices include the register of probate
(Barnstable, Bristol, Dukes, Norfolk, and Plymouth Counties
only), county commissioner (same), county treasurer (Bristol,
Dukes, Norfolk, and Plymouth Counties only), council of
government executive committee (Franklin County only), and
sheriff (Norfolk County only). See 2020 Candidate's Guide,
supra.
5
affiliated with the various political parties (Democratic,
Green-Rainbow, Libertarian, and Republican) are nominated to run
for the offices at issue, is currently scheduled for September
1, 2020. See Secretary of the Commonwealth, A Candidate's Guide
to the 2020 State Election, at 5 (rev. Feb. 2020) (2020
Candidate's Guide). The general election, in which the party
nominees will compete against one another as well as against any
nonparty candidates for the offices on the ballot, is scheduled
for November 3, 2020. See id.
The three plaintiffs aspire to appear on the State primary
election ballot in September in an effort to secure their
respective party's nominations for three different Federal and
State offices. Robert Goldstein seeks to be the Democratic
Party's nominee for the office of United States representative
for the Eighth Congressional District in Massachusetts. Kevin
O'Connor seeks the Republican Party's nomination for the office
of United States senator. Melissa Bower Smith aspires to be the
Democratic Party's nominee for the office of State
representative for the Fourth Norfolk District.
a. Minimum signature requirements. To appear on the
ballot, candidates like the plaintiffs are required by statute
to, among other things, submit nomination papers containing a
6
minimum number of certified voter signatures.7 See G. L. c. 53,
§ 44. The number of certified signatures required differs
depending on the office the candidate is seeking. Id. For
example, a candidate like O'Connor, seeking election as a United
States senator, must secure 10,000 certified voter signatures.
Id. A candidate like Goldstein, seeking election as a
representative to the United States Congress, requires 2,000.
Id. And a candidate seeking election as a State representative,
like Smith, must obtain 150. Id.8
b. Certified signatures. To qualify as "certified," a
signature must be of a voter registered in the geographic area
corresponding to the office for which the candidate is seeking
nomination. See G. L. c. 53, § 7. In addition, if the
candidate is seeking the nomination of a particular political
7Candidates for Federal and Statewide offices who are not
affiliated with a party also must satisfy certain minimum
signature requirements to appear on the general election ballot
in November. The deadlines for the submission and filing of
their nomination papers, however, do not expire until July 28
and August 25, 2020. See 2020 Candidate's Guide, supra at 6-9.
Federal and Statewide nonparty candidates, therefore, are not
similarly situated to the plaintiffs. Nor has anyone appeared
in this action and challenged the signature requirements and
deadlines for nonparty candidates for Federal or Statewide
offices. Therefore, we do not address the constitutionality of
those requirements and deadlines.
8The number of certified voter signatures required for the
other offices at issue in the upcoming State primary election
are as follows: Executive councilor, 1,000; State senator, 300;
Barnstable and Franklin County offices, 500; and all other
county offices, 1,000. See G. L. c. 53, § 44.
7
party, as is the case with the plaintiffs, the voter must be
registered with the same party or as "unenrolled," meaning
registered to vote, but with no party affiliation.9 See G. L.
c. 53, § 37; 2020 Candidate's Guide, supra at 13. Accordingly,
for a candidate like O'Connor, seeking the Republican Party
nomination for United States senator, a Statewide office,
signatures may be secured from voters registered anywhere in
Massachusetts as either Republicans or unenrolled. For a
candidate like Goldstein or Smith, seeking the Democratic Party
nomination to represent a specific district in Massachusetts,
the signatures must be from voters registered in that district
as either Democrats or unenrolled.
c. Nomination papers. The process for obtaining and
certifying the required number of signatures commences when the
Secretary prepares the nomination papers and furnishes them to
candidates. See G. L. c. 53, § 47. This year, the nomination
papers were furnished on February 11, 2020.10 Before obtaining
any signatures, candidates must fill in the top of the
nomination papers with certain information, including their
9 Unenrolled voters are commonly referred to as
"Independents." See 2020 Candidate's Guide, supra at 4.
10The Secretary is required to furnish the nomination
papers on or before the fifteenth Tuesday preceding the deadline
established in G. L. c. 53, § 48, for filing certified
nomination papers. See G. L. c. 53, § 47.
8
name, address, and party affiliation (if any), and the office
they are pursuing. See G. L. c. 53, § 8. The candidates, or
others working on their behalf, must then gather voter
signatures on the nomination papers or on "exact copies" of such
forms. See G. L. c. 53, § 17. Voters are required to sign the
nomination papers "in person as registered or substantially as
registered" (emphasis added). G. L. c. 53, § 7. The Secretary
interprets this combination of requirements, that the voter sign
"in person" on the original nomination papers or on "exact
copies" thereof, to mean that the signatures eventually
submitted and filed must be original handwritten or "wet"
signatures. However, "any voter who is prevented by physical
disability from writing may authorize some person to write his
or her name and residence in his or her presence." Id. Voters
also must indicate the address where they are currently
registered on the nomination papers. Id.
d. Certification and filing deadlines. The statutorily
driven timeline that follows the receipt of the nomination
papers from the Secretary has two major deadlines, which can
differ depending on the office a candidate is pursuing. The
first is the deadline by which the candidate must submit the
nomination papers to local election officials for certification.
At least twenty-eight days before the deadline for the
submission of the certified nomination papers to the Secretary,
9
the candidates must submit their nomination papers to local
election officials in each city and town where the individuals
who signed the papers are registered to vote.11 See G. L. c. 53,
§§ 7, 46. For a candidate like Smith, pursuing a seat as a
State representative, this deadline falls on or before April 28,
2020. For candidates like O'Connor and Goldstein, seeking
Federal offices, this deadline falls on or before May 5, 2020.
Applying regulations promulgated by the Secretary, see 950
Code Mass. Regs. § 55.03(1) (2004),12 local election officials
then review each signature on the nomination papers. See G. L.
c. 53, §§ 7, 46. Signatures can be disallowed for a variety of
reasons, including that the voter is not registered at the
address provided, the voter's name as signed does not match the
voter's name as registered, the voter's signature or address is
illegible, the voter is enrolled in the wrong party, or the
voter's signature already appeared on the candidate's nominating
papers. See 950 Code Mass. Regs. § 55.03(1). Due to the
potential for the disallowance of numerous signatures, prudent
candidates collect more signatures than are required, see 2020
Candidate's Guide, supra at 16 (encouraging candidates to do
11"Each nomination paper should contain signatures of
registered voters from only ONE city or town." 2020 Candidate's
Guide, supra at 16.
12The regulations were promulgated by the Secretary
pursuant to authority granted in G. L. c. 53, § 7.
10
just that), and local election officials are required to certify
two-fifths more signatures than are required to make the ballot,
G. L. c. 53, § 7. Local election officials are required to
complete the certification process no later than the seventh day
before the deadline for the submission of the papers to the
Secretary. G. L. c. 53, §§ 7, 46. There then follows a short
period for candidates to seek a review of disallowed signatures.
See G. L. c. 55B, § 6.
The second major deadline, from which the first is
calculated, is the date by which nomination papers certified by
local election officials must then be filed with the Secretary.
For candidates seeking election to State district and county
offices, this deadline is on or before the last Tuesday in May
of an election year, which, this year, means on or before May
26, 2020. See G. L. c. 53, §§ 10, 48. This is the deadline by
which Smith, seeking election as a State representative, must
file her certified nomination papers with the Secretary.
Meanwhile, for candidates who are seeking election to Federal or
Statewide offices, as are O'Connor and Goldstein, the deadline
is on or before the first Tuesday in June, which, in this
election year, is on or before June 2, 2020. See G. L. c. 53,
§ 48.
e. Objection process. Registered voters from the district
in which a candidate seeks nomination have three days from the
11
filing deadlines with the Secretary to file objections to
nomination papers with the State Ballot Law Commission (SBLC).
See G. L. c. 55B, § 5. The SBLC then has twenty-one days from
the closure of the objection periods to render a decision on any
objections. See G. L. c. 55B, § 10. Given the aforementioned
filing deadlines with the Secretary, therefore, objections to
nomination papers would have to be decided by the SBLC on or
before June 19 and 26, 2020, as applicable.
f. Preparation of ballots. For any election in which a
Federal office is at issue, Federal law mandates that ballots
must be transmitted to military and overseas voters no later
than forty-five days in advance of the election. See 52 U.S.C.
§ 20302(a)(8)(A). For the upcoming September 1 primary
election, this means that local election officials must transmit
the ballots to military and overseas voters by July 18. In
turn, this means the Secretary's office may have as little as
eighteen days from the June 26 SBLC decision deadline to the
July 14 date when ballots must be in the hands of local election
officials to prepare, proofread, and finalize the 2,200
different ballot styles required for the different jurisdictions
in the Commonwealth. According to the Secretary's office, this
timeline is already tight, since the process usually takes three
weeks to complete.
12
2. COVID-19 pandemic. On March 10, 2020, the Governor
declared a state of emergency throughout the Commonwealth in
response to the spread of COVID-19, where he invoked his
statutory authority to "from time to time issue recommendations,
directives, and orders as circumstances may require." See
Executive Order No. 591. The following day, the World Health
Organization declared COVID-19 to be a global pandemic. On
March 15, 2020, the Governor issued orders closing all public
and private elementary and secondary schools, prohibiting public
and private gatherings of more than twenty-five people, and
prohibiting the on-premises consumption of food and drink at
restaurants, bars, and other food establishments. Then, on
March 23, 2020, he issued another executive order, further
limiting public and private gatherings to no more than ten
people and requiring all nonessential businesses to close their
physical workplaces and facilities. See COVID-19 Order No. 13.
See also COVID-19 Order No. 21. At his direction, the
Department of Public Health (DPH) issued a "Stay-at-Home
Advisory" the following day, declaring that it was "critically
important" for everybody to "[o]nly leave home for essential
errands such as going to the grocery store or pharmacy," and
that, when people do leave home, to "practice social distancing
by staying [six] feet away from others." DPH Public Health
Advisory: Stay-at-Home Advisory (Mar. 24, 2020). On April 10,
13
DPH issued another advisory recommending that people wear face
coverings or masks when social distancing is not possible. See
DPH Advisory Regarding Face Coverings and Cloth Masks (Apr. 10,
2020). All of these restrictions on everyday life, which will
remain in effect until at least May 4, 2020, have been imposed
in an effort to mitigate the spread of the virus, which can
occur at an alarming rate. Even with these restrictions in
place, as of April 16, 2020, there have been 32,141 confirmed
cases of COVID-19 in Massachusetts, resulting in 1,245 deaths.
See Department of Public Health, Coronavirus Disease 2019
(COVID-19) Cases in MA, as of April 16, 2020, https://mass.gov
/doc/covid-19-cases-in-massachusetts-as-of-april-16-2020
/download [https://perma.cc/FR75-PDFY].
With the onset of the pandemic and the imposition of
restrictions that followed, the plaintiffs and other candidates
could not safely and reasonably gather voter signatures in the
usual ways, namely, going to places where large numbers of
potential registered voters are likely to be, such as town
centers, malls, grocery stores, or political meetings. In the
face of this predicament, the plaintiffs and other candidates
wrote to the Secretary, seeking relief from the minimum
signature requirements. The Secretary, however, maintained that
he lacked the authority to act, and that only the Governor and
14
Legislature could provide such relief.13 The Governor and
numerous legislators have expressed their willingness to
consider a legislative "fix" to the predicament, but bills that
were introduced in the Legislature that would reduce the number
of required signatures for those offices requiring 1,000 or more
signatures by fifty percent, see 2020 Senate Doc. No. 2632, or
by two-thirds for all offices, see 2020 House Doc. No. 4981.
The Senate has engrossed its bill, but, as of the time this
opinion was submitted, neither legislative "fix" had been
enacted.
Discussion. The right to seek elected office, like the
related right to vote, is a fundamental constitutional right in
Massachusetts. Article 9 of the Massachusetts Declaration of
Rights provides, with impressive brevity and clarity, that
"[a]ll elections ought to be free; and all the inhabitants of
this commonwealth, having such qualifications as they shall
establish by their frame of government, have an equal right to
elect officers, and to be elected, for public employments."
13The Secretary issued an advisory recommending, among
other things, that candidates and volunteers "take appropriate
precautions as they continue to gather signatures. If you are
interacting with voters, be sure to have hand sanitizer or
disinfectant wipes available and wash your hands frequently. If
possible, consider providing signers with fresh pens and sheets
of paper." See Secretary of the Commonwealth, COVID-19
Elections Updates, https://www.sec.state.ma.us/ele/covid-
19/covid-19.htm [https://perma.cc/ZM2J-GBY8].
15
Over the ensuing 240 years since the adoption of our Declaration
of Rights in 1780, art. 9 has served to protect the
"fundamental" and "intertwine[d]" rights of candidates to gain
access to the ballot and of voters to cast their ballots as they
see fit. See Libertarian Ass'n of Mass. v. Secretary of the
Commonwealth, 462 Mass. 538, 560 (2012) (LAM).
As with many fundamental rights, the "court has sustained
statutes which reasonably regulate elections and access to a
place on the ballot." Opinion of the Justices, 368 Mass. 819,
821-822 (1975). See Opinion of the Justices, 413 Mass. 1201,
1209 (1992), quoting Opinion of the Justices, 375 Mass. 795, 811
(1978) ("the right to be elected, preserved in art. 9, is not
absolute but 'is subject to legislation reasonably necessary to
achieve legitimate public objectives'"). In fact, the court has
previously considered the same minimum signature requirements at
issue here and concluded that they withstood constitutional
scrutiny. LAM, 462 Mass. at 567. In that case, the plaintiff
Libertarian party sought to transfer the certified voter
signatures obtained by one candidate to another candidate in
order to qualify the latter to be on the general election
ballot. See id. at 545-546. The present case comes before the
court under an entirely different set of facts and
circumstances. The framework through which we analyze it,
however, remains the same.
16
When we evaluate the constitutionality of a restriction on
access to the ballot, we apply a "sliding scale approach, . . .
through which [we] weigh the character and magnitude of the
burden the State's rule imposes on the plaintiffs' rights
against the interests the State contends justify that burden,
and consider the extent to which the State's concerns make the
burden necessary" (quotations, citations, and alterations
omitted). Id. at 560. "Regulations imposing severe burdens on
plaintiffs' rights must be narrowly tailored and advance a
compelling state interest. Lesser burdens . . . trigger less
exacting review, and a State's important regulatory interests
will usually be enough to justify reasonable, nondiscriminatory
restrictions" (quotations and citations omitted). Id. More
recently, recognizing that the Massachusetts Declaration of
Rights may be more protective of voting rights than the Federal
Constitution, we have declared that we do not use the phrase
"severe burden," which arises from Federal constitutional
jurisprudence, in determining whether strict scrutiny applies
but instead apply strict scrutiny to a voting requirement that
"significantly interfere[s]" with the fundamental right to vote.
See Chelsea Collaborative, Inc. v. Secretary of the
Commonwealth, 480 Mass. 27, 35, 36 n.21, 40 (2018). We need not
decide here whether the Massachusetts Constitution provides
greater protections for the art. 9 rights at issue, because it
17
is undisputed that, under the circumstances arising from this
pandemic, we should apply strict scrutiny to the minimum
signature requirements regardless of whether we apply a "severe
burden" or "significant interference" formulation.
In ordinary times, the minimum signature requirements to
appear on the ballot in Massachusetts only impose "modest
burdens" on prospective candidates for public office, so "there
need be only a rational basis undergirding the regulation in
order for it to pass constitutional muster" (citation omitted).
LAM, 462 Mass. at 567. And in ordinary times the rational basis
threshold is "easily" met, as the "State's interest in ensuring
that a candidate makes a preliminary showing of a substantial
measure of support before appearing on the ballot is legitimate"
(quotation, citation, and alteration omitted). Id. Minimum
signature requirements ensure "that the candidates who appear on
the . . . ballot have demonstrable support among the voting
public." Barr v. Galvin, 626 F.3d 99, 111 (1st Cir. 2010),
cert. denied, 565 U.S. 929 (2011). In doing so, they "safeguard
the integrity of elections by avoiding overloaded ballots and
frivolous candidacies, which diminish victory margins,
contribute to the cost of conducting elections, confuse and
frustrate voters, increase the need for burdensome runoffs, and
may ultimately discourage voter participation in the electoral
18
process." Libertarian Party of Me. v. Diamond, 992 F.2d 365,
371 (1st Cir.), cert. denied, 510 U.S. 917 (1993).
But, as we have recognized, statutory requirements that
were once considered constitutionally permissible may later be
found to interfere significantly with a fundamental right as
societal conditions and technology change. See Chelsea
Collaborative, Inc., 480 Mass. at 37, citing Goodridge v.
Department of Pub. Health, 440 Mass. 309, 341 n.33 (2003). And
similarly, statutory requirements that in ordinary times impose
only modest burdens on prospective candidates for public office
may significantly interfere with the fundamental right to run
for political office in a time of pandemic.
We need not dwell long on how dramatically conditions have
changed in Massachusetts since the Governor first announced a
state of emergency arising from the COVID-19 pandemic on March
10. All who presently live in the Commonwealth have seen it
(and lived it), and, for additional details, posterity can look
to our recent decision in Committee for Pub. Counsel Servs. v.
Chief Justice of the Trial Court, 484 Mass. 431, 433-434 (2020).
Suffice it to say that, during the state of emergency, the
traditional venues for signature collection are unavailable:
few people are walking on public streets in town centers; malls
are closed, as are all but essential businesses; restaurants
provide only take-out food or delivery; public meetings, if held
19
at all, are conducted virtually; and the vast majority of people
are remaining at home. See Glovsky v. Roche Bros. Supermkts.,
Inc., 469 Mass. 752, 762 (2014) (recognizing candidates'
constitutional right to solicit nominating signatures outside
entrance to supermarket); Batchelder v. Allied Stores Int'l,
Inc., 388 Mass. 83, 92 (1983) ("a person needing signatures for
ballot access requires personal contact with voters").
When people do encounter each other, they do so only by
maintaining a "social distance" of at least six feet, and
attempt to keep such encounters as brief as possible. Because
it has been shown that one can carry and spread the COVID-19
virus without any apparent symptoms, every encounter with
another person, especially a stranger, poses a risk of
infection. Because it is not altogether clear how long the
COVID-19 virus may "survive" on various surfaces and objects,
people are reluctant to touch any pen or piece of paper that has
been touched by another, at least unless they quickly can wash
or sanitize their hands. Accordingly, if a candidate seeks to
obtain signatures on nomination papers in the traditional ways,
he or she reasonably may fear that doing so might risk the
health and safety not only of the person requesting the
signature but also of the persons who are signing, of the
families with whom they live, and potentially of their entire
community.
20
In short, as the Secretary rightly and readily
acknowledges, the minimum signature requirements, which may only
impose a modest burden on candidates in ordinary times, now
impose a severe burden on, or significant interference with, a
candidate's right to gain access to the September 1 primary
ballot, and the government has not advanced a compelling
interest for why those same requirements should still apply
under the present circumstances. See LAM, 462 Mass. at 560.
Indeed, it concedes that there is none. The minimum signature
requirements, therefore, in this time of pandemic are
unconstitutional as applied to the plaintiffs, and other
similarly situated candidates.
If the Legislature had enacted a law on March 23 imposing
harsh new requirements that made it substantially more difficult
for candidates to obtain the required signatures to get on the
September 1 primary ballot, we no doubt would declare the law
unconstitutional. The Legislature, of course, did not do this,
but it is fair to say that the pandemic did. To be sure, "wet"
signatures can still be obtained, but the ability to do so
safely has been greatly diminished or been made significantly
more laborious. No fair-minded person can dispute that the
fundamental right to run for elective office has been
unconstitutionally burdened or interfered with by the need to
21
obtain the required "wet" signatures in the midst of this
pandemic. See LAM, 462 Mass. at 560.
The burdens imposed by the statutory minimum signature
requirements are not inevitable. There are alternatives that
could preserve the legislative purpose that a candidate
demonstrate a certain level of support in order to win a place
on the ballot and yet protect the public from the health risks
associated with obtaining "wet" signatures.
As a general matter, the principle of separation of powers
set forth in art. 30 of the Massachusetts Declaration of Rights
prevents the "judiciary [from] substituting its notions of
correct policy for that of a popularly elected Legislature"
(citation omitted). Commonwealth v. Leno, 415 Mass. 835, 841
(1993). But where fundamental constitutional rights are
violated, and where the Legislature fails to remedy the
constitutional deficiencies after having had the opportunity to
do so, and where an aggrieved litigant files suit seeking
remedial relief for the constitutional violation, the judiciary
must provide such a remedy. See Cepulonis v. Secretary of the
Commonwealth, 389 Mass. 930, 938 (1983), citing Reynolds v.
Sims, 377 U.S. 533, 586 (1964). Here, where the filing deadline
for nomination papers fast approaches, and the Legislature has
yet to take decisive action, we have little choice but to
provide equitable relief, pursuant to G. L. c. 214, § 1, to
22
protect the constitutional rights of the plaintiffs and those
similarly situated. See Commonwealth v. United Food Corp., 374
Mass. 765, 781 (1978) ("In order to avoid the unconstitutional
aspects of the statute, and to achieve the basic legislative
purpose, we conclude that the judge must have discretion to
fashion the judgment in this case . . ."). "It is a well
settled principle that, in fashioning appropriate relief, the
issuance and scope of equitable relief rests within the sound
discretion" of the court. Johnson v. Martignetti, 374 Mass.
784, 794 (1978), citing Martin v. Murphy, 216 Mass. 466, 468
(1914). We recognize, though, that where these extraordinary
circumstances require us to make policy judgments that, in
ordinary times would be best left to the Legislature, our remedy
must be "no more intrusive than it ought reasonably be to ensure
the accomplishment of the legally justified result." Perez v.
Boston Hous. Auth., 379 Mass. 703, 730 (1980).14
14The action we take here is by no means unprecedented.
Other States, addressing the potential for voter
disenfranchisement in the face of natural disasters, have
similarly provided narrowly tailored equitable relief to protect
the constitutional rights of voters. See, e.g., Florida
Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1257-1259 (N.D.
Fla. 2016) (ordering Statewide extension of voter registration
deadline in response to Hurricane Matthew); Georgia Coalition
for the People's Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344,
1345-1346 (S.D. Ga. 2016) (ordering extension of voter
registration deadline for one county in response to Hurricane
Matthew). In addition, at least one court has declared minimum
signature requirements to be unconstitutional in light of the
pandemic and, as a result, reduced the numbers. See Omari
23
The plaintiffs have requested various alternative forms of
relief. Before we discuss the relief that is granted, we take a
moment to address the requests for relief that we do not believe
are justified.
The plaintiffs first request that we not only declare the
minimum signature requirements unconstitutional as applied to
them and similarly situated candidates during this primary
election, but also declare the minimum signature requirements
void. In effect, the plaintiffs seek to avoid the minimum
signature requirements altogether and proceed directly to the
September 1 primary ballot. We decline to order this remedy;
the justification for the current statutorily prescribed
signature requirements is outweighed by the burden those
requirements impose under the present conditions, but there is
still merit to having some signature requirements. Even in the
midst of the pandemic, the State has a legitimate interest in
ensuring that a candidate makes a preliminary showing of support
among the electorate before appearing on the ballot. In
addition, the pandemic has not completely deprived candidates of
the ability to gather signatures. Between February 11, 2020,
when the nomination papers were first made available, and March
Faulkner for Va. vs. Virginia Dep't of Elections, CL2000-1456,
Cir. Ct. of Richmond (Mar. 25, 2020) (order reducing signature
requirement for candidates seeking to be Republican Party
nominees for United States Senate from 10,000 to 3,000).
24
23, 2020, when the first significant restrictions were imposed
in response to the pandemic, candidates had forty-one days in
which to gather signatures without any constraint. Since March
23, the process has become unconstitutionally burdensome, but
not impossible. And the remedies we provide in this decision
will permit additional signatures to be safely obtained. It
would not be equitable, therefore, to declare the minimum
signature requirements void altogether.
Given the looming deadlines, the plaintiffs also request,
in the alternative, that we extend the deadlines for submitting
nomination papers to local election officials and for filing the
certified nomination papers with the Secretary. The Secretary,
however, maintains that an extension beyond May 5 for
submissions to local election officials and May 26 for filing
with the Secretary is not workable, given the time needed for
the SBLC to deal with any objections to the nomination papers,
for the Secretary's office to prepare the 2,200 different styles
of ballots required for the different jurisdictions in the
Commonwealth, and for local election officials to then transmit
the ballots by July 18 to military and overseas voters, as
required by Federal law. The plaintiffs have not disputed the
Secretary's timeline or his analysis of the problems that would
arise from a greater extension, and we defer to his experienced
judgment in this regard. Therefore, we will extend the
25
deadlines only for candidates running for State district and
county offices, and extend their deadlines only to match the
deadlines that apply to party candidates running for Federal and
Statewide offices: from April 28 to May 5 to submit nomination
papers to local election officials for certification, and from
May 26 to June 2 to file the certified nomination papers with
the Secretary.
The plaintiffs have further requested, as alternative
relief, that we "substantially" reduce the number of signatures
required to get on the primary election ballot. The Secretary
agrees, but suggests that the reductions should only apply to
offices for which 1,000 or more certified voter signatures are
currently required. This would preclude any reduction of the
required minimum signatures for candidates for State senator and
representative, who currently must secure 300 and 150
signatures, respectively, and for offices in certain counties
(e.g., Barnstable County register of probate and Barnstable
County commissioner), who currently need to obtain 500
signatures. We agree that, in light of the prevailing
circumstances, the most equitable alternative is to reduce the
number of signatures required. We do not agree, however, that
it would be equitable to do so only for some candidates and not
others.
26
Presumably, the number of signatures required for each
office was established to reflect a balance between the number
of people represented by the elected office and the burden
involved in obtaining the signatures. Hence, a Statewide office
such as United States senator warrants burdening a candidate
with a requirement of gathering 10,000 signatures, while an
office representing fewer people, such as a State senator,
warrants a signature requirement of 300. It seems only just
that the same rationale should apply when it comes to reducing
the minimum numbers in response to the pandemic, and that the
same percentage decrease should apply to all offices. To hold
otherwise would alter the relative ratio of the minimum
requirements chosen by the Legislature. For instance, a primary
candidate for the State Senate must gather only three per cent
of the signatures that a primary candidate for the United States
Senate must gather; that ratio should not be altered by the
remedy we devise.
In determining the percentage of the across-the-board
reduction, the Secretary has suggested a reduction of fifty
percent (50%), the same amount that has been proposed in one of
the bills currently pending in the Legislature.15 We agree with
15We note that both the Secretary and 2020 Senate Doc. No.
2632 would limit this fifty percent (50%) reduction to offices
requiring 1,000 or more signatures.
27
that suggested percentage decrease. Fifty percent (50%) has a
rational connection to the underlying constitutional violation.
As noted supra, the candidates had forty-one days after the date
when nomination papers were first made available (February 11)
to gather signatures without any significant restrictions
related to the pandemic. That all changed on March 23, when the
Governor issued the order limiting public and private gatherings
to no more than ten people, requiring all nonessential
businesses to close their physical workplaces and facilities,
and directing DPH to issue the Stay-at-Home Advisory, urging
people to leave home only for essential errands and to practice
social distancing when they did. Forty-one days is almost
exactly fifty percent (50%) of the time between February 11 and
May 5, which is now the deadline by which all primary candidates
have to collect signatures and submit them to local election
officials. Even if candidates were slow to start, it was
significantly challenging, but not impossible, to gather
signatures after March 23, and as discussed infra, candidates
will now have some opportunity to obtain electronic signatures
through May 5, so it should not be unfairly burdensome for a
serious candidate to obtain one-half of the required signatures.
The number of certified registered voter signatures required to
get on the September 1 primary ballot, therefore, is reduced by
fifty percent (50%) for all candidates.
28
Finally, the plaintiffs also request that we order State
officials to explore "less stringent strategies" for the
collection and submission of signatures, such as through the
electronic collection of signatures. They note that a few
States have implemented the use of electronic signatures and
submissions for purposes of securing access to the ballot,
including at least two that did so in response to the current
pandemic.16 In the order reserving and reporting this case to
the full court, the parties were asked to address the logistics
of, and potential problems with, collecting and verifying
electronic signatures. Their submissions have convinced us that
there are too many issues and unanswered questions to allow us
confidently to impose a remedy that would transform a nomination
system that required "wet" signatures into one that permitted a
broad range of electronic signatures, including a printed name.
To name just a few, there are the inherent time constraints
discussed supra; there are potential logistical, legal, and
cyber-security related concerns; and, of course, there is the
16Arizona already had adopted an electronic candidate
nominating system called "E-qual," which allows voters to show
support for candidates "from the comfort of [their] home[s] or
anywhere [I]nternet access is available." See https://apps
.azsos.gov/equal [https://perma.cc/2HDB-YHSF]. New Jersey and
Florida, meanwhile, have taken some action in this regard in
response to the pandemic. See New Jersey Governor, Executive
Order No. 105 (Mar. 19, 2020); Florida Secretary of State,
Emergency Rule No. 1SER20-2 (Apr. 3, 2020).
29
fact that local and State governments are already operating
under severe constraints, and often with skeletal staffing, due
to the pandemic.
The Secretary, however, has suggested one modest means to
include electronic signature collection among our equitable
remedies, which the plaintiffs find attractive, as do we.
Specifically, the Secretary proposes that we order that
candidates seeking to be on the ballot for the September 1
primary election be allowed to scan and post or otherwise
distribute their nomination papers online. Voters may then
download the image of the nomination papers and either apply an
electronic signature with a computer mouse or stylus, or print
out a hard copy and sign it by hand. The signed nomination
paper can then be returned to the candidate, or a person working
on the candidate's behalf, either in electronic form (by
transmitting the "native" electronic document or a scanned paper
document) or in paper form (by hand or mail). The candidates
will still have to submit the nomination papers to local
election officials in hard copy paper format, but the proposed
process will alleviate the need for, and the risk associated
with, obtaining "wet" signatures. The Secretary is ordered
forthwith to provide clear guidance to prospective candidates as
to how this electronic signature collection process may be
30
accomplished effectively, although candidates need not await
that guidance to get started.
Conclusion. For the reasons stated, the plaintiffs'
application for declaratory relief is allowed to the extent that
we declare, in the limited context of the current pandemic, that
the minimum signature requirements in G. L. c. 53, §§ 7 and 44,
for candidates in the September 1, 2020, primary election are
unconstitutional. As a remedy for this constitutional
violation, we order that (1) the number of required signatures
be reduced by fifty percent (50%) for all offices; (2) the
deadlines for candidates running for State district and county
offices to submit their nomination papers to local election
officials for certification and for the filing of certified
nomination papers with the Secretary be extended to May 5, 2020,
and June 2, 2020, respectively, which are the current due dates
for party candidates running for Federal and Statewide offices;
and (3) subject to the restrictions outlined in this decision,
the Secretary shall allow the submission and filing of
nomination papers with electronic rather than "wet" signatures.
So ordered.
KAFKER, J. (concurring). Given the pressing need for
immediate action during the pandemic, and the technological
limitations in our existing electoral infrastructure identified
by the Secretary of the Commonwealth (Secretary), I concur in
the court's multifaceted remedy. I write separately, however,
to express concern that those responsible for our electoral
process have concluded that they are unable to solve the problem
of in-person signatures with the more straightforward and
targeted solution of electronic filing of signatures, and
therefore have required the court to temporarily rewrite the
election laws. Those responsible for our elections must have
the technological tools to respond to the pandemic that
confronts us, which has fundamentally changed the world as we
know it. Leaving these electoral problems for the courts to
solve should be a last resort.
When we declare an act unconstitutional, we must do so in
the least intrusive and most judicious manner possible. See
Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167
(1998) ("We must construe statutory provisions, when possible,
to avoid unconstitutionality, . . . and to preserve as much of
the legislative intent as is possible in a fair application of
constitutional principles"). Even as these extraordinary
circumstances require us to fashion judicial remedies for such
constitutional violations, we must do our utmost to avoid making
2
policy decisions that are the responsibilities of other branches
of government. See Commonwealth v. Leno, 415 Mass. 835, 841
(1993) (recognizing "the undesirability of the judiciary
substituting its notions of correct policy for that of a
popularly elected Legislature" [quotations and citation
omitted]). Our duty is to do the minimum of what is necessary
to conform those statutes to the Massachusetts Constitution, and
not to rewrite those statutes more extensively. See id. See
also Aptheker v. Secretary of State, 378 U.S. 500, 515 (1964)
("Although this Court will often strain to construe legislation
so as to save it against constitutional attack, it must not and
will not carry this to the point of perverting the purpose of
a statute or judicially rewriting it" [quotation, citation, and
alteration omitted]).
The fundamental issue here is the statutory requirement
that nomination signatures be obtained "in person." See G. L.
c. 53, § 7. As the court highlights, and as we have previously
stated, the State has a legitimate interest in ensuring that
candidates have a "substantial measure of support" before they
may appear on the ballot. See Libertarian Ass'n of Mass. v.
Secretary of the Commonwealth, 462 Mass. 538, 567 (2012),
quoting Barr v. Galvin, 626 F.3d 99, 111 (1st Cir. 2010), cert.
denied, 565 U.S. 929 (2011). Otherwise, the ballot would be
overcrowded and confusing. See id. at 567 & n.29. Moreover,
3
the requirement that candidates obtain a minimum number of
signatures in order to qualify for the ballot is reasonably
related to this interest. See id. Rather, it is the in-person
aspect of the signature requirement that renders it unduly
burdensome in light of the current pandemic and quarantine, as
this requirement presents public safety risks for both the
campaign and individual signatories. An in-person signature
simply cannot be obtained without endangering the health of
those collecting the signatures and those signing their names.
The least intrusive remedy to this constitutional
deficiency would be one that carves out the in-person
requirement and replaces it with its nearest equivalent:
electronic signatures. This solution should be technologically
feasible and relatively straightforward in the midst of a
pandemic: use electronic nomination papers that can be
electronically signed by voters and electronically submitted to
local election officials.
Electronic signatures are the norm in the private sector
and many areas of government. Even before automatic voter
registration took effect, the Secretary maintained an online
portal that allowed citizens to complete an online affidavit
using an image of their electronic signature from the registry
of motor vehicles to register to vote. See G. L. c. 51, § 33A.
The Legislature has also already laid the groundwork for the
4
verification of registered voters' electronic signatures. The
Legislature has expressly determined that, as a general matter,
"[a] record or signature may not be denied legal effect or
enforceability solely because it is in electronic form," and,
"[i]f a law requires a signature, an electronic signature
satisfies the law." G. L. c. 110G, § 7 (a), (d). The
Legislature and the Secretary have also facilitated certain
business filings by allowing both electronic signatures and
electronic submissions. See G. L. c. 156D, §§ 1.40 et seq.
(including electronic signatures in definition of "sign" or
"signature" for purposes of incorporation); 950 Code Mass. Regs.
§ 113.06(4) (2006) (requiring "original" signature on corporate
filings unless documents are submitted "by authorized electronic
or facsimile transmission"). If this trend toward acknowledging
electronic signatures is acceptable for the registration of
voters and the creation of businesses, it should also be
sufficient to meet ballot signature requirements.
One would think that, had electronic signatures been
expeditiously approved for use on nomination papers by the
Legislature and the Secretary, nothing more would be necessary
to remedy the unconstitutional burden here. In an age dominated
by social media sites like Facebook and Twitter, and one that
requires sophisticated digital political campaigning, it is
difficult to imagine that a viable legislative candidate for the
5
State house or State senate would be unable to electronically
alert and engage the 150 or 300 followers that the candidate
needs to obtain electronic signatures to appear on the ballot.
Those seeking Statewide office should also be able to satisfy
their reasonable signature requirements if a readily accessible
electronic signature process were adopted. Indeed, this would
presumably be the norm if the technical capacities of our
election infrastructure were anywhere near as sophisticated and
adaptable as those of the private sector and other areas of
government.
Unfortunately, according to the Secretary, election
officials lack the technological capacity at this time to
readily accept electronic signatures for ballot nominations.
The Secretary contends that there are significant limitations on
the capacity of local and State election officials to receive
and verify such electronic signatures for the purposes of
satisfying the signature requirements, even when those
requirements involve a manageable numbers of signatures, ranging
from 150 to 10,000, plus the additional number of signatures
necessary to create a margin of error for the candidates.
Specifically, the Secretary contends that individual
municipalities may not be able to open large e-mail attachments
containing voter signatures, and may be unable to access online
file storage sites due to cybersecurity concerns. Why this
6
remains so difficult in the modern era is somewhat inexplicable.
Why a simple e-mail attestation that includes the name, address,
and party registration of the voter is insufficient is also not
obvious. The process for verifying even "wet" signatures
appears to consist primarily, if not completely, of a comparison
of the name, address, and voter registration on the "wet"
signature with the name, address, and voter registration on
record. See 950 Code Mass. Regs. § 55.03(1) (2004). Why a
simple e-mail is more suspect than a "wet" signature remains
unclear.
Nevertheless, because of the current technological limits
on our election capabilities and the procedural requirements of
the current process, candidates will be forced to continue to
submit their nomination papers in hard copy form. According to
the Secretary, we are limited to the following process for
allowing electronic signatures. First, candidates will be
permitted to electronically post or distribute their nomination
papers. Then, voters must download the papers and either
electronically sign, or print and physically sign, the document
and return it to the candidate in electronic or paper form. The
candidate will then be tasked with producing all voter
signatures in hard copy paper format, and physically submitting
his or her nomination papers to local officials for
certification. At minimum, this awkward, multistep process will
7
require candidates or campaign volunteers to risk exposure to
the virus by venturing out, either to the post office or a local
official's physical office, in order to deliver the nomination
papers to election officials.
Allowing voters to submit their signatures electronically
as part of this cumbersome process, by itself, is not enough to
fix the problem. Indeed, the parties agree that this stilted
approach to electronic signatures is not enough. Rather, given
the apparent lack of technological capacity to readily accept
and verify electronic signatures in a more straightforward
manner –- even in the midst of a global pandemic -- this court
is instead forced to impose alternative remedies, such as
reducing the statutorily prescribed signature threshold and
extending the time limits for gathering signatures.
Unfortunately, these alternative remedies raise other
constitutional issues. When we start to alter the numbers of
signatures required to qualify for the ballot, we begin to stray
into territory reserved for the Legislature. See Kenniston v.
Dep't of Youth Servs., 453 Mass. 179, 189 (2009). While
reducing the signature threshold by fifty percent may be a sound
Solomonic solution, and roughly corresponds to the amount of
time candidates have lost, this appears to be more of a policy
choice best left to the Legislature, which can act with great
8
dispatch when it chooses to do so.1 Nonetheless, in the instant
case, at this last minute in the signature gathering process,
and in the absence of legislative action, this court is forced
to impose these alternative remedies itself to conform the
election laws to constitutional requirements during the pending
emergency. These remedies also appear to be the least intrusive
ones available, in light of the deficient technological
capabilities identified by the Secretary and the imminent
approaching deadlines for submitting nomination papers.
In this "high tech" era, and in the midst of a global
pandemic that severely restricts close personal contact, the
failure to be able to solve manageable technological problems on
the eve of an election is confounding and distressing. At a
time when we need to be fundamentally rethinking what must be
done in person and what can instead be done electronically, our
electoral process seems dangerously unequipped to adapt to a new
paradigm.
The COVID-19 pandemic has dramatically changed our current
reality, not only in the Commonwealth, but across the globe, and
not simply for a month or two. Despite the significant negative
1 We recognize that elected officials are presently
operating under the same quarantine restrictions as the rest of
the Commonwealth. This makes the enactment of major substantive
changes more difficult to accomplish, particularly where such
changes require collaborative efforts among significant numbers
of people.
9
effects of this lockdown, health officials have urged the
importance of maintaining quarantine efforts for the foreseeable
future. Tozzi and Bloomberg, "Social distancing until 2022? It
may be necessary, according to Harvard coronavirus researchers,"
Fortune (Apr. 14, 2020) https://fortune.com/2020/04/14
/social-distancing-until-2022-coronavirus-end-date-spread-covid-
19-harvard-researchers/ [https://perma.cc/HQJ5-4257]. It
remains to be seen when the current measures will no longer be
necessary. The Governor has indicated that the existing
lockdown will remain in place until at least May 4, 2020. See
COVID-19 Order No. 21. Even to the extent that the spread of
the virus slows in the coming months, there are indications it
may again surge in the fall. See Tozzi and Bloomberg, supra.
In any event, it is clear that the effects of COVID-19 will be
felt for years to come, and that we must adapt to face the long-
term logistical challenges that this new reality poses to our
society, particularly for in-person interactions.
Other States have adapted their election machinery to
address the electronic signature problem. As the court
observes, ante at note 16, Arizona has adopted a centralized
system for allowing voters to electronically sign candidates'
nomination papers, called "E-Qual." See
https://apps.azsos.gov/equal/ [https://perma.cc/2HDB-YHSF]. The
E-Qual website prompts voters to provide select personal
10
information, which is then used to access their voter
registration record. See id. Once their voter registration
record has been identified, voters may electronically sign a
candidate's nominating petition. See id. As the website
boasts, this system allows voters to show their "support for a
candidate from the comfort of [their] home[s] or anywhere
[I]nternet access is available." See id.
Despite the apparent lack of technological solutions
available for purposes of the current election cycle, it would
appear that the Commonwealth has the means to ameliorate this
issue going forward, though not in time to address the issue
before the court. As explained by the amicus, the Commonwealth
is already expanding its acceptance of electronic signatures in
other areas of election administration. Pursuant to legislation
passed in 2018, the Commonwealth began implementing an automatic
voter registration process on January 1, 2020. See G. L. c. 51,
§ 42G½; St. 2018, c. 205, § 4. As a part of this process,
automatic voter registration agencies, such as the registry of
motor vehicles,2 must transmit a voter's electronic signature to
the Secretary, who transmits the same to the board of registrars
2 An "automatic voter registration agency" is defined as "a
location at a state agency where an eligible citizen may
register to vote." G. L. c. 51, § 42G½ (a), (b).
11
or election commission of the city or town where the voter
resides. G. L. c. 51, § 42G½ (e).
Municipal registrars therefore already have at least a
growing database of electronic signatures of voters registered
in the Commonwealth. It follows, then, that they should have
the capability to compare electronic signatures submitted for a
candidate's nomination papers with electronic signatures
submitted by automatic voter registration agencies. See G. L.
c. 51, § 42G½; 950 Code Mass. Regs. § 55.03(1)(b). They should
therefore be able to scale up to wider use of electronic
signatures in the near future. That future, however, is
apparently not now. For that reason, I am forced to concur.
In sum, while I agree with the court that the technological
limitations described by the Secretary prevent us from replacing
the in-person requirement with electronic signatures alone in
the short time before the signatures are due, and require the
multifaceted remedy the court proposes, I feel compelled to
emphasize that those responsible for our election process must
have the necessary tools to quickly adapt to the current
pandemic and the future crises to follow. Absent such
technological adaptability, our elections will be imperiled and
our election laws may themselves have to be rewritten in the
midst of a crisis, as was done here. That is an invitation to
conflict and confusion that must be avoided.