Brady v. State Ballot Law Commission ( 2020 )

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SJC-12979
HELEN BRADY vs. STATE BALLOT LAW COMMISSION & others.1
Suffolk. July 10, 2020. - August 3, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Cypher,
& Kafker, JJ.
Election, 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 May 5, 2020.
The case was reported by Kafker, J.
Christopher A. Kenney for the petitioner.
Elizabeth Kaplan, Assistant Attorney General, for the
respondents.
Gerald A. McDonough for the interveners.
KAFKER, J. This appeal concerns a decision of the State
Ballot Law Commission (SBLC) preventing Helen Brady from
appearing on the September 1, 2020, State primary election
1 Secretary of the Commonwealth; and Massachusetts
Democratic Party and Leon Arthur Brathwaite, II, interveners.
2
ballot for the Republican nomination for the office of United
States representative for the Ninth Congressional District in
Massachusetts. The SBLC, acting upon the objection of Leon
Arthur Braithwaite, II, a registered voter in the Ninth
Congressional District and the vice-chair of the Massachusetts
Democratic State Committee, struck all of the certified
signatures that Brady had secured from voters in an effort to
appear on the ballot.
Following this court's allowance of the electronic
collection of signatures on nomination papers in Goldstein v.
Secretary of the Commonwealth, 484 Mass. 516, 531-532 (2020),
Brady, with the aid of a software application provided by a
third-party vendor, had gathered all of her voter signatures
electronically. There is no question that she had collected the
required minimum number of signatures. Nor is there a question
that the signatures were legitimate. Nonetheless, according to
the SBLC, the process Brady utilized failed to comply with
formal electronic signature requirements outlined by the court
in the Goldstein decision (Goldstein process), as well as with
an "advisory" issued by the Secretary of the Commonwealth
(Secretary) in response to the Goldstein decision. In brief,
the SBLC ruled that Brady departed from the Goldstein process by
failing to submit the "native" electronic document signed by the
voter to local election officials for certification. Instead,
3
she submitted a document that differed from the native
electronic document, albeit in form only, not substance. Also,
the SBLC concluded that Brady failed to abide by the Secretary's
advisory when she had voters sign her nomination papers
electronically by applying a computer mouse, stylus, or finger
to a separate box provided for that purpose, rather than
directly on the signature line itself.
Brady challenged the SBLC's ruling in the Superior Court,
but then moved to consolidate that action with an existing
petition that she, along with three other candidates seeking to
appear on the State primary ballot, had filed in the county
court. Given the time sensitive nature of the appeal, with the
Secretary needing to finalize the State primary ballot by July
14, 2020, to meet a federally mandated deadline,2 the single
justice consolidated the matters and reserved and reported them
to the full court.3 On July 13, 2020, following expedited
2 By Federal law, 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).
3 Notwithstanding the consolidation of the two matters, the
only issue before the court concerns Brady's appeal from the
SBLC's decision. The three other candidates to the underlying
petition -- Caroline Colarusso, Julie Hall, and Rayla Campbell
-- are not parties to this appeal. The petition was dismissed
as moot by the single justice as to Colarusso and Hall after
they qualified for and were placed on the primary ballot.
Campbell pursued a separate appeal before the full court, which
is pending.
4
briefing and oral argument, we vacated the SBLC decision and
ordered the Secretary to place Brady's name on the ballot,
concluding that the electronic filing process utilized by Brady
complied with the substance of the material requirements of the
Goldstein decision. We now issue this opinion to explain fully
the court's reasoning.
Background. 1. The Goldstein decision. On April 17,
2020, the court issued the decision in Goldstein, granting
several forms of equitable relief to candidates seeking to
collect voter signatures on nomination papers as required to
appear on the State primary election ballot. In recognition of
the extraordinary restrictions on in-person contact during the
COVID-19 pandemic, the court (1) reduced the number of required
certified signatures by fifty percent (50%), (2) extended the
deadlines for certain candidates to submit signed nomination
papers to local election officials for certification and then
file certified signatures with the Secretary, and (3) ordered
the Secretary to allow for the submission of nomination papers
with electronic signatures, not just wet-ink original signatures
("wet" signatures). Goldstein, 484 Mass. at 529-532.
Regarding the last item, the court adopted and outlined an
electronic signature collection process that had been
recommended as a compromise solution by the Secretary and viewed
with favor by the candidates in that case:
5
"[C]andidates seeking to be on the ballot for the September
1 primary election [are] 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 accomplished effectively,
although candidates need not await that guidance to get
started." (Emphasis added.)
Goldstein, 484 Mass. at 531-532.
Four days later, on April 21, 2020, the Secretary issued an
"advisory" concerning the collection of signatures in light of
the Goldstein decision, which provided, in relevant part:
"The voter can sign by either a) using a computer mouse or
stylus applied to the signature line of the nomination
paper screen image to sign their actual original signature
in person and in real time or b) printing out the
transmitted nomination paper and affixing their original
signature by hand ('wet signature')" (emphasis added).
2. Brady's nomination papers. Following the issuance of
Goldstein, Brady retained the services of a third-party vendor,
VenueX Media, LLC (VenueX), to assist her in collecting
electronic signatures from registered voters in the Ninth
Congressional District. Having anticipated the potential
benefit to collecting signatures electronically during the
6
COVID-19 pandemic, VenueX had been working to develop a software
application for that purpose. Once the court allowed for that
possibility, VenueX finalized the application, with some
modifications to comply with the Goldstein process, and made it
available to candidates. All told, forty candidates in
Massachusetts utilized VenueX's application, including
Democrats, Republicans, and Independents.4 Brady, for her part,
used it to collect all of her signatures; she did not collect
any wet signatures.
The application worked as follows. VenueX created a unique
webpage for Brady ("www.nominationpapers.com/helenbrady"), which
consisted of an image of the back and front of her nomination
papers. Brady solicited voters to visit the webpage by sending
them a link via Facebook, Twitter, e-mail, or other means.
Voters could access the webpage by "clicking" on that link using
any device connected to the Internet, such as a cell phone,
tablet, desktop computer, or laptop. Once on the webpage,
voters could see an image of Brady's nomination papers,
containing her name and address, as well as the elected office
4 While it is undisputed that forty candidates utilized
VenueX's application, it is not evident from the record how many
of them actually submitted signatures for certification that
were collected using the application or, if they did, how many
such signatures they submitted. At least three candidates who
used the application qualified to appear on the ballot. No
objections were filed to their nomination papers with the SBLC.
7
she was seeking, her party affiliation, and the date of the
State primary election. There was also a green-colored block
over the first voter signature line on the image of the
nomination papers, which read "SIGN HERE." When voters clicked
on that block, they were directed to a box elsewhere on the
webpage, where they could use a stylus, mouse, or finger to sign
their name. There were also boxes on the webpage where voters
typed in their name, e-mail address, telephone number, street
address, city or town, State, and ZIP code. Upon signing and
entering the other data, voters would then click on another
green-colored block on the webpage, which read "Submit," and the
process would be complete. Voters could then download a copy of
the nomination papers they submitted, which came in the form of
a Portable Document Format, or .pdf5 (first nomination papers).
On the face of the first nomination papers, the voter's
signature was visible on the line where the green "SIGN HERE"
block had previously appeared, along with the date and time of
the submission and the voter's address. A .pdf copy of the
5 As described by the company that purports to have invented
the Portable Document Format, or .pdf, it "is now an open
standard, maintained by the International Organization for
Standardization (ISO). PDF documents can contain links and
buttons, form fields, audio, video, and business logic. They
can be signed electronically, and you can easily view PDF files
on Windows or Mac OS using the free Acrobat Reader DC software."
See Adobe Acrobat, What is PDF?, https://acrobat.adobe.com/us/en
/acrobat/about-adobe-pdf.html [https://perma.cc/QX28-6Y2X].
8
first nomination papers was also automatically sent by e-mail
message to the voter, as a form of "receipt."6
When voters clicked "Submit," however, the first nomination
papers were not, in fact, submitted to Brady or her campaign.
Instead, the data entered on the webpage by each voter was
transmitted to a database maintained by VenueX. The captured
data included the submission date and time; the voter's name, e-
mail address, telephone number, street address, city or town,
State, and ZIP code; a link to an image of the voter's
signature, which was stored in the "cloud"7; the unique Internet
protocol (IP) address of the device the voter used to submit the
nomination paper; and a unique identification number for each
submission. Brady and her campaign had access to the database
for purposes of tracking the submissions as they were collected,
but they could not alter or download the content. Nor could
6 Voters could have downloaded the first nomination papers
from the webpage, printed them out, signed them with a wet
signature, and returned them to Brady's campaign. Presumably,
they also could have printed out the .pdf of the first
nomination papers bearing their electronic signature, and
returned it to Brady's campaign. However, no voters submitted
nomination papers to Brady's campaign in either of those ways.
Nor does it appear that there was any direction provided on the
webpage that would have prompted voters to do so.
7 The "cloud" refers to cloud computing, a type of remote
electronic data storage. See Commonwealth v. Gelfgatt, 468
Mass. 512, 536 (2014) (Lenk, J., dissenting).
9
they access the stored images of the voter signatures. Only
VenueX had that level of access.
The final step in the process occurred when VenueX provided
Brady's campaign with a second version of the signed nomination
papers, which were created by importing the data from the
database, including the stored image of the voter's signature
(second nomination papers). The second nomination papers, which
were also in .pdf form, would then be electronically transferred
to Brady's campaign in a folder, whereupon they could be printed
out en masse and submitted to location election officials for
certification. The second nomination papers were not identical
to the first nomination papers. As with the first nomination
papers, the second contained Brady's name and address, her
Republican party affiliation, and the elected office she was
seeking, but this information now appeared in a different font
in all upper case letters, whereas it appeared in upper and
lower case letters in the first. The second nomination papers,
like the first, also included the voter's signature on the line
where the green "SIGN HERE" block had previously appeared, but,
unlike the first, did not include the date and time of
submission. The typewritten name of the voter also was inserted
on the second nomination papers on the line next to the voter's
signature, which was not the case on the first. Otherwise, the
10
first nomination papers and second nomination papers were the
same.8
As a result of the Goldstein decision, Brady needed at
least 1,000 certified voter signatures to appear on the
Republican State primary ballot -- fifty percent (50%) of the
amount required by statute. See G. L. c. 53, § 44. Ultimately,
local election officials in towns and cities in the Ninth
Congressional District certified 1,066 of her signatures, which
Brady then filed with the Secretary by the applicable June 2,
2020, deadline.
3. Objection before the SBLC. By law, registered voters
from the district in which a candidate is seeking nomination
have three days from the filing deadline with the Secretary to
file objections to nomination papers with the SBLC. See G. L.
c. 55B, § 5. On June 5, 2020, Braithwaite filed an objection,
claiming that Brady failed to comply with the Goldstein process
because the voters who signed her nomination papers did not
return, and she did not submit, the "native" electronic
document. In addition, he claimed that Brady failed to comply
with the Secretary's advisory because the voters had not signed
by applying a computer mouse or stylus to the signature line on
8 The placement and size of the voter's signature was also
slightly different on the second nomination papers, but the
signature nonetheless appeared on the signature line in both
versions of the nomination papers.
11
the image of Brady's nomination papers. Braithwaite maintained
that, on either ground, all 1,066 of Brady's certified
signatures had to be declared invalid.9
On June 16, 2020, the SBLC held a hearing on Braithwaite's
objections, at which only one witness, the founder of VenueX,
testified. Subsequently, on June 26, 2020, the SBLC issued a
decision and written statement of reasons, striking all 1,066 of
Brady's signatures on the grounds advanced by Braithwaite. In
addition, the SBLC ruled that the process utilized by Brady
violated public policy by storing images of voter signatures
without their consent and without adequate measures to protect
against the fraudulent application of those signatures to other
documents (i.e., documents other than the nomination papers).
At the same time, the SBLC acknowledged that there was no
evidence that any voter's signature was applied to any document
other than Brady's nomination papers, and credited the testimony
of VenueX's founder that no such misapplication had occurred.
The SBLC also credited the testimony of VenueX's founder, and
acknowledged that there was no evidence to contradict, that all
1,066 voters had, in fact, signed, or at least made some mark,
with a computer mouse, stylus, or finger in the signature box on
9 Braithwaite also raised various other objections to
approximately 117 of Brady's certified signatures. The SBLC,
however, chose not to adjudicate those objections, and
Braithwaite has waived them on appeal.
12
Brady's webpage before clicking "Submit." But see note 8,
supra.
Discussion. 1. Compliance with the Goldstein process.
The relevant facts concerning the electronic signature gathering
process utilized by Brady are not in dispute. The only
question, therefore, is one of law: whether the electronic
signature process Brady utilized complied with the requirements
set out in Goldstein. In making such determination, we owe no
deference to the SBLC. The court defined the emergency
electronic signature procedures for the September primary
election itself. We are therefore interpreting our own
decision, not the general election laws within the special
expertise of the SBLC. Compare Swift v. AutoZone, Inc., 441
Mass. 443, 450 (2004) ("In general, we grant substantial
deference to an interpretation of a statute by the
administrative agency charged with its administration" [citation
omitted]). Our review of the question is thus de novo. See
Capezzuto v. State Ballot Law Comm'n, 407 Mass. 949, 952 (1990)
("conclusions of law to be drawn from [the] facts are subject to
independent judicial review").
As we undertake our review, we remain mindful of several
important principles. First and foremost, the constitutional
rights to run for office and to vote for a candidate who has
satisfied the requirements to stand for office are fundamental.
13
See Goldstein, 484 Mass. at 524 (for "240 years since the
adoption of our Declaration of Rights in 1780, art. 9 [of the
Massachusetts Declaration of Rights] 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" [citation omitted]). They are essential to the proper
functioning of our democracy. As we recognized in Goldstein,
the pandemic posed a unique threat to the exercise of these
fundamental rights and required us to apply strict scrutiny to
the existing statutory signature gathering requirements. See
id. at 524-525. In the end, we declared the existing signature
requirements unconstitutional during the pandemic and granted
extraordinary equitable relief to preserve and protect art. 9
rights, cutting in half the minimum number of signatures
required and allowing some form of electronic signature
gathering. See id. at 526 (existing "signature requirements
. . . in this time of pandemic are unconstitutional as applied
to the plaintiffs, and other similarly situated candidates").
In so doing, we recognized that some technological adaptation
was required to address the emergency, and a certain amount of
flexibility was required to avoid constitutional difficulties.
See id. (existing "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
14
candidate's right to gain access to the September 1 primary
ballot"). See also id. at 533 (Kafker, J., concurring) ("it is
the in-person aspect of the [existing] 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"
[emphasis in original]).
A second principle underlying our Goldstein decision was
the temporally limited, emergency nature of its relief.
Recognizing the unpredictable force and duration of the
emergency, the equitable relief granted in Goldstein, including
the particular electronic signature gathering process it
authorized, only applied during a finite period of time and to a
finite group of candidates. See id. at 518 ("We emphasize that
the declaration we make and the equitable relief we provide is
limited to the [September 1, 2020] primary election in these
extraordinary circumstances . . ."). It was emergency relief
tailored to the emergency itself.
It was also the product of a necessarily expedited
proceeding. The petition was filed on April 8, 2020, and
decided nine days later, without the benefit of any lower court
proceedings. While the court asked the parties to address the
logistics of, and potential problems with, collecting and
verifying electronic signatures, with an eye toward adopting a
15
more comprehensive process, it quickly became clear that it
would not be possible to do so in such short order. Id. at 531
("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"). Instead, the court adopted a "modest
means" of electronic signature gathering put forward as a last-
minute compromise by the Secretary, id., despite the "awkward,
multistep process" it involved, id. at 535 (Kafker, J.,
concurring). In an effort to avoid the type of dispute we are
now forced to resolve here, we also asked and expected the
Secretary to provide further follow-up guidance to candidates
regarding the implementation of the electronic signature
gathering process that his office had proposed. The guidance
that was provided, however, was quite limited, indeed
unnecessarily so.
Finally, as discussed at length in the concurrence in
Goldstein, see id. at 532-538, we remain convinced that the
legislative and executive branches, not the courts, are best
suited for enacting a comprehensive electronic signature
collection process, a process that was long overdue even before
the pandemic. With all that said, we now turn to the challenge
to Brady's signature gathering process.
16
We start by noting what is not being challenged. At the
heart of our Goldstein decision were certain essential
requirements. First, we cut in half the number of certified
signatures that a candidate was required to gather, with that
number being reduced to 1,000 for those seeking Congressional
office, like Brady. It is undisputed here that over 1,000
registered voters in the Ninth Congressional District signed, or
at least made some mark, in the signature box on Brady's webpage
and then clicked on the box that read "Submit," thereby
conveying support for Brady's appearance on the September
primary ballot.
We also sought in Goldstein to ensure that the signature
gathering process produced legitimate signatures. There is no
dispute that all of the signatures gathered by Brady are
legitimate.10 There is no evidence or suggestion of fraud or
impropriety. Moreover, not one of the 1,066 registered voters
who purportedly signed Brady's nomination papers came forward
and denied having done so. Nor was there even a suggestion that
any voter had made such a claim. In short, there is no dispute
that Brady satisfied the essential substantive requirements of
the Goldstein decision.
10As previously noted, see note 9, supra, Braithwaite had
asserted objections to certain specific signatures gathered by
Brady, but the SBLC did not adjudicate those objections, and
Braithwaite has waived them on appeal.
17
Instead, the dispute concerns specific issues of form,
particularly the language in Goldstein providing that the
"signed nomination paper [could] be returned [by the voter] to
the candidate, or a person working on the candidate's behalf,
. . . in electronic form (by transmitting the 'native'
electronic document or a scanned paper document)" (emphasis
added). Goldstein, 484 Mass. at 531. According to the court's
ruling, the candidate, or someone acting on the candidate's
behalf, was then authorized to print the native electronic
document out and submit it in "hard copy paper format" to local
election officials for certification. Id.
According to Braithwaite and the SBLC, the native
electronic documents in the process utilized by Brady were the
first nomination papers: the .pdf the voter could download, and
also received as an attachment to an e-mail message, after
electronically signing and submitting the nomination papers. As
Braithwaite and the SBLC point out, however, voters did not
return the first nomination papers to Brady. Nor did Brady, or
anyone acting on her behalf, print them out and submit them to
local election officials in hard copy paper format. Instead,
Brady utilized VenueX's application to collect the data and
signature entered by the voter in the process of creating the
first nomination papers, imported them to another version of the
nomination papers (what we have referred to as the second
18
nomination papers), and then printed that version out in hard
copy paper format and submitted it to local election officials.
This, according to Braithwaite and the SBLC, violates the
Goldstein process and necessitates striking all of Brady's
certified signatures.
We begin our analysis with the language of the Goldstein
process itself. The phrase "'native' electronic document" was
regrettably not defined in the decision or in the Secretary's
advisory.11 Yet, as utilized in Goldstein, it seems reasonably
clear that the court was referring to the original electronic
document signed and electronically transmitted by the voter. In
the process utilized by Brady, that would seem to refer to the
first nomination papers, as Braithwaite and the SBLC suggest.
No doubt, had the version of the nomination papers downloaded by
the voter after clicking "Submit," or the version that was
automatically sent to the voter as a form of receipt, been sent
to the candidate or someone acting on her behalf, and then
submitted to the local election officials, this requirement of
11The phrase "native file format" is common and refers to
"a method used by the computer operating system or file
management to arrange data. For example, when you save a
Microsoft Word document, the data in the file is customized and
optimized to be read in Microsoft Word. These files have the
.doc or .docx file extension." See Computer Hope, Native file
format, https://www.computerhope.com/jargon/n/natifile.htm
[https://perma.cc/94WK-DDEJ].
19
Goldstein would have been satisfied in form as well as
substance.
According to Braithwaite and the SBLC, the only way a voter
could legally return the nomination papers electronically under
Goldstein would be to transmit the native electronic document or
a scanned paper document. Although we disagree with this
contention, we recognize that our decision could have been
clearer. Our reference to the "one modest means" of electronic
signature gathering proposed by the Secretary was not intended
to be exclusive. The decision does not state that the voter
"must" or "shall only" return the nominations papers
electronically by transmitting either the native electronic
document or a scanned paper document. The use of the word "can"
was intentional, and the words "'native' electronic document"
and "scanned paper document" were intended as obvious
permissible examples of the ways in which the nomination papers
could be transmitted electronically by voters. Again, however,
we recognize that this point could have been made more clearly
by prefacing the parenthetical with the express words, "for
example," or even the Latin abbreviation, "e.g." Of course, the
court's recognition of some limited variation on what was
permissible does not mean that the nomination papers can be
transmitted any which way, or that the particular process Brady
used was proper. For further guidance on resolving this
20
question, we are again informed by the fundamental principles of
election law.
"Election laws are framed to afford opportunity for the
orderly expression by duly qualified voters of their preferences
among candidates for office, not to frustrate such expression."
Swift v. Registrars of Voters of Quincy, 281 Mass. 271, 277
(1932). See McCarthy v. Secretary of the Commonwealth, 371
Mass. 667, 683 (1977) ("The principal objective of election laws
is to ensure that the public will may be expressed through the
electoral process"). As we have previously explained, access to
the ballot is a fundamental right, essential to the success of
our democracy. In cases like the present one, where someone
seeks to enforce restrictions on that fundamental right, courts
have been careful to distinguish between violations of form and
violations of substance. See, e.g., Robinson v. State Ballot
Law Comm'n, 432 Mass. 145, 149-152 (2000) (no public purpose
served by construing statute to prevent access to ballot merely
because back of candidate's nomination paper was photocopied
upside down); Garrison v. Merced, 33 Mass. App. Ct. 116, 117
(1992) ("exceedingly technical arguments should not block access
to the ballot"). The alleged violation here falls decidedly
into the former category.
To be clear, the process utilized by Brady was not ideal,
and it would have been preferable had she simply collected and
21
submitted the first nomination papers. At the end of the day,
however, there was no substantive difference between the first
nomination papers and the second. As already noted, there were
essentially three differences: (1) on the second nomination
papers, some words were printed in all upper case letters that
had been printed in upper and lower case letters in a different
font on the first nomination papers; (2) the date and time of
submission appeared on the line next to the voter's signature on
the first nomination papers, but not on the second; and (3) the
voter's typewritten name, which had been entered by the voter
prior to submission, appeared on the line next to the voter's
signature on the second nomination papers, but not on the first.
The differences are insubstantial, and they cannot justify
removing a candidate from the ballot and frustrating the right
of voters to have a choice of candidates for elected office.
Both sets of nomination papers identified Brady's name and
address, the office she was seeking to be elected to, the party
whose nomination she was seeking, and the date of the election.
There is no evidence here of a "bait and switch" scheme. Cf.
Arkuss vs. Galvin, Mass. Super. Ct., No. 02-1318A (Suffolk
County Apr. 12, 2002) (complaint alleging that initiative
petition signature collectors misled voters by placing cover
page from one petition over signature page from different
petition). Nor is there any evidence of voter confusion. Cf.
22
Garrison, 33 Mass. App. Ct. at 117 (failure to designate
political party whose nomination was sought on nomination papers
had potential to mislead voters and did not amount to "mere
technical[]" omission). To the contrary, as noted, it is
undisputed that all 1,066 of the voters signed, or at least made
some mark, in the signature box on Brady's webpage and then
clicked on the box that read "Submit," thereby expressing their
support for Brady's appearance on the September Republican
primary ballot for the office of United States representative
for the Ninth Congressional District.
For these reasons, we conclude, as we did in our order of
July 13, 2020, that the electronic signature gathering process
utilized by Brady complied in substance with the material
requirements of Goldstein.
2. Compliance with the Secretary's advisory. We turn now
to Braithwaite's alternative objection, and the SBLC's ruling,
that all of Brady's certified signatures were invalid because
the voters did not sign by applying a computer mouse or stylus
to the signature line on the image of her nomination papers, as
required by the Secretary's advisory. This need not detain us
long.
The court in Goldstein directed the Secretary to "provide
clear guidance to prospective candidates as to how [the]
electronic signature collection process [outlined in the
23
decision] may be accomplished effectively, although candidates
need not await that guidance to get started" (emphasis added).
Goldstein, 484 Mass. at 532. In so doing, the court was not
somehow authorizing the Secretary to establish "regulations" or
impose additional restrictions on candidates. If that were the
court's intent, it would have required candidates to await such
guidance before proceeding. Our hope was that the Secretary
would provide helpful information to candidates as they pivoted,
in the middle of a pandemic, from traditional wet signature
collection to the new world of electronic signature collection.
The guidance that was provided was quite limited, largely
focusing on how the electronic signature could be applied.
Regardless, the Secretary's advisory does not have the force of
law, and any failure to comply with it on Brady's part does not
invalidate her signatures.
Even if that were not the case, the fact is that the
process Brady utilized materially complied with the Secretary's
advisory. As described above, when voters visited Brady's
webpage, they saw a green-colored block over the first voter
signature line, which read "SIGN HERE." When they clicked on
that block, they were directed to a box elsewhere on the
webpage, where they could use a stylus, mouse, or finger to sign
their name. This is the functional, if not literal, equivalent
of signing by applying a computer mouse or stylus to the
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signature line on the image of the nomination papers.
Certainly, reasonable voters could not have been misled as to
where their signatures were going to end up (i.e., on the
signature line). Moreover, that is where their signatures ended
up, on both the first and second nomination papers.12
3. Public policy considerations. Finally, we turn to the
SBLC's conclusion that the process utilized by Brady violated
public policy by allowing for the storage of images of voter
signatures without their consent and without adequate measures
to prevent those images from being applied to documents other
than Brady's nomination papers. As the SBLC noted in reaching
this conclusion, unanswered questions regarding "cybersecurity
related concerns" were one of the reasons cited by the court in
Goldstein for not adopting a more comprehensive electronic
12We note that, following the Goldstein decision, the
Secretary entered into three separate agreements for judgment in
the county court, which provided, under materially similar
circumstances, that voters signing electronically would be
deemed to have applied their signature directly on the
applicable document if, among other things, "the voter engages
in the physical act of signing their name . . . in a separate
signature box that is made available by an act of the voter,
such as a mouse click." See Christian vs. Galvin, Supreme
Judicial Ct., No. SJ-2020-0444 (Suffolk County June 29, 2020)
(extending, and expanding upon, Goldstein process for nonparty
candidates for Federal office); Better Future Project, Inc. vs.
Galvin, Supreme Judicial Ct., No. SJ-2020-0483 (Suffolk County
June 19, 2020) (same as to proponents of public policy ballot
questions); Dennis vs. Galvin, Supreme Judicial Ct., No. SJ-
2020-0278 (Suffolk County Apr. 29, 2020) (same as to proponents
of initiative petitions).
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signature collection model. See Goldstein, 484 Mass. at 531.
The court continues to have those concerns. There is no
evidence, however, that any personal information (e.g., e-mail
address or telephone number) or voter signatures have been
misapplied or improperly disclosed. In fact, the founder of
VenueX testified without contradiction that no such thing has
occurred. Accordingly, we do not view our concerns as
sufficient grounds for denying Brady access to the ballot.13
As a precaution, however, we do hereby order Brady, VenueX,
and all other persons and entities having possession of the data
entered by voters in the process of signing Brady's nomination
papers, including e-mail addresses, telephone numbers, and the
images of signatures, to destroy the same forthwith.14 This
order does not apply to the nomination papers that were filed by
Brady or certified by local election officials, or any copies
thereof. Brady shall provide written certification of
compliance with this order to the court within thirty days of
the date of this decision. The written certification shall
13We note that in the three agreements for judgment into
which the Secretary entered in the county court following the
Goldstein decision, see note 12, supra, there were provisions to
protect voters' personal information and signatures obtained
during the electronic signature collection process.
14The SBLC and Secretary notified the court in a letter
filed pursuant to Mass. R. A. P. 16 (l), as amended, 386 Mass.
1247 (1982), that they are not aware of any reason why the court
cannot enter an order requiring the destruction of said data.
26
include the name of each person and entity known to have
possession of the data and the steps Brady took to make sure
that they destroyed it.
Conclusion. For the reasons stated, on July 13, 2020, we
vacated the SBLC decision and ordered the Secretary to place
Brady's name on the ballot for the State primary election. As
set forth more fully above, we further order the destruction,
forthwith, of the data entered by voters in the process of
signing Brady's nomination papers, and order Brady to file a
written certification of compliance therewith with the court
within thirty days of the date of this decision.
So ordered.