>> SJC-12979 Helen Brady v. State Ballot Law Commission and Secretary of the Commonwealth.
>> I also, by the way, would ask if any of you are not
on a cell phone to try and get your cell phone.
And if you're not speaking too, be silencing your -- would be using your mute button.
So Mr. Kenney, you may proceed.
>> Mr. Chief Justice, it's Clerk Kenneally, would it be prudent
at this time to mention a recusal?
>> I guess.
Thank you.
Maybe wondering why we only have six -- I'm sorry.
Thank you, Clerk Kenneally.
Justice Budd is recusing this case.
So there will be six justices who would be deciding.
Thank you, Clerk.
Nearly I forgot all about that.
And with that, Mr. Kenney, now you may proceed.
>> Thank you, Your Honor.
Good afternoon.
May it please the Court?
My name is Christopher Kenney.
I represent the petitioner appellant, Helen Brady.
Justice requires that the court vacate the State Ballot Law Commission decision
and order the State Secretary to place Helen Brady on the ballot
of the September primary election.
Here's why.
The court will be reviewing this de novo because it involves errors
of law and issues of constitutionality.
No deference should be given to the commission, because it has no experience,
technical competence or specialized knowledge about electronic signature gathering.
So there's no basis for the Court to defer to the commission.
Rather, the Court in taking a fresh look at the record
of this case should vacate the Commission's decision, because it's based on an error of law
that Brady did not meet the Goldstein standard.
And because affirming the Commission's decision would violate Brady's state
and federal constitutional rights.
A fair review of the record shows that Brady met the letter and spirit of the Goldstein decision.
And Goldstein at pages 531 to 532, there is a long block paragraph
that contains the stepping stones of the court's recipe for compliance
with the new electronic signature gathering protocol.
And looking at that, the court should broadly interpret Goldstein
to avoid a constitutional issue if possible.
And that is possible here.
It's clear that Miss Brady's consultants created a software program
that met the standard set in Goldstein.
It allowed a scam, or post of the nomination papers online, voters could download the image
of the nomination papers and apply an electronic signature with a computer mouse or stylus.
The signed nomination papers would then return to the candidate or person working
on the candidate's behalf either in electronic form
by transmitting the native electronic document or scanned paper document.
Goldstein does not define the terms electronic document or native.
Black's Law Dictionary does however, identify electronic document
as any electronic media content other than a computer program or system file that's intended
to be used in electronic printed form.
The signatures and other data provided by the voter here clearly fall within this definition,
and they were provided to VenueX media in their native electronic format.
The Goldstein case does not require more than that.
However, the commission latched on to the Secretary of State's advisory
and erroneously gave it the force of law when it doesn't deserve that treatment
in this circumstance, because there was no notice and comment period.
It is not a regulation.
So in the Court's prior ruling of Mass General Hospital versus Rate Setting Commission,
no weights should be given to the advisory in adjudicating this process.
If the Court were to rule that the Commission's decision
or the advisory imposed boarding requirements that --
or exceed Goldstein, the requirements should be struck
down because they significantly interfered with the fundamental right to vote.
In short, the commission decision itself was entered long after the period for Ms. Brady
to have collected signatures who would have been impossible for her to comply with these
if they're deemed to be new voting requirements.
The court must apply a strict scrutiny standard to these voting requirements of the DMV such
and the state must show that they are narrowly tailored
and that they have a compelling state interest.
Court made that clear in [inaudible] case.
The Commission decision and advisory are not narrowly tailored, they're expansive,
and they add burdens and definitions and procedures that the court did not put
into the Goldstein decision that finds Ms. Brady's procedure.
And these other processes that the Commission and Secretary sought to inject
into the Goldstein standard are not necessary to advance a compelling state interest.
As Justice Kafker persuasively outlined in his concurring opinion in Goldstein,
technology now allows for reliable use of electronic signature images.
As he pointed out, the registry of motor vehicle now allows images of signatures to be used
to create the new Commonwealth voter registration database.
Ironically, even this court allows the lawyers who appear before you today
to have filed our briefs yesterday with a simple backflash F or our own signatures.
Moreover, the Supreme Judicial Court and single justice sessions in the past two months
since Goldstein have progressively clarified electronic signature processes with new details
and definitions that are not found in Goldstein.
This shows a lack of clarity in Goldstein.
Everyone commends the Court for the quick action you took in reviewing and deciding Goldstein.
Because it was such a quick action, the circumstances were not perfect and the process,
therefore, was not perfect either.
It has been perfected in subsequent decisions like Dennis
and Better Future Project and Christian.
None of those whoever are binding on Ms. Brady.
She's only governed by the Goldstein standard,
which has none of the safeguards the court has built into this standard and procedure
as it's evolved over the past two and a half months.
Now, before the court in addition to the appeal from the Commission's ruling --
>> Mr. Kenney, you've already been more than five and a half minutes.
So I'm going to stop you now and I'm going to invite questions for Justice Lenk.
>> Thank you, Your Honor.
>> Justice Lenk, do you have any questions?
>> Hello. Am I unmute now?
>> Yes, you were.
>> Hello?
>> Yes, yes, we hear you.
>> Am I off mute now?
>> Yes, we can hear you.
>> Hello?
>> We can hear you.
>> Hello?
>> We can hear you.
>> Hello?
>> Sorry, I can hear you just as fine.
Do anybody else who cannot?
Why don't you just ask your questions?
>> Hello?
>> Yup. Are you not able to hear us?
>> Hello? Hello?
Can you hear me?
>> We can hear you.
>> Oh OK, it's fine.
Fine, fine.
Good. All right.
I'm sorry about that.
Mr. Kenney, good afternoon.
>> Good afternoon, Your Honor.
>> I have a few questions about the argument regarding equal protection
that I know you haven't reached yet this morning, but that is happening.
But could you tell me really please now that you've had a chance to look
at the pleading filed by your opposition and the intervener?
What it is that you say to the potential argument
that you have no legal protection argument because after all, you know,
you are in a position of somebody who has been speeding just as everybody else
in the road has been speeding, but you're the one who gets picked up.
They're the only one that -- your client is the only one
that has a complaint brought against them.
So that you really don't have any equal protection as I understand it.
[ Inaudible ]
>> Pardon me?
>> I said that's my understanding of the argument.
Would you like to enlighten us?
>> Yes, yes, please.
Thank you, Your Honor.
The equal protection argument is based on the fact that the evidence shows
that several candidates up to 39 other candidates used the same software protocol,
and that we have in the record evidence that at least four of them Colarusso,
and Kevin O'Connor, and Paul and Campbell [assumed spelling] used this specifically.
Three of those four have been qualified
for the ballot using the same procedure that Helen Brady did.
And when the State Ballot Law Commission decided to say that she cannot be on the ballot
for that process, she's being treated differently than those other four candidates
who have used the same protocol and do have access to the ballot.
>> That's right.
But I mean, if none of you complied with the appropriate precedent is that --
they argue in a position of being like a sphere who is just complaining
that the other spheres didn't get stopped.
>> Well, I think, Your Honor, my argument is more
like that the state police had everyone stopped and only issued ticket to my client.
>> OK. I got it.
>> The Commission has already to investigate this and to take action and did not.
>> OK. I don't have anything else.
Thanks.
>> Justice Gaziano.
>> Yes. Thank you.
You opened up by saying that you satisfy the letter in the spirit of Goldstein
and you may have satisfied the spirit.
But as far as the letter goes, when you say that our president requires the sign nomination paper
to go back, and this was basically the data from the sign nomination paper,
not the sign nomination paper itself to go -- to be forwarded.
What do you say to that technical argument?
>> Your Honor, the native document that we say controls here is the voter input
onto the image of the nomination form.
That information was only put by the voter and it's saved in its native format
and applied electronically to the form that's printed --
>> Yeah. I don't know if it stretches a bit, because in no way does it say it's the data
or it's the free voting signature that is -- that controls it.
So it's always been the nomination paper back
when it was envisioned before we got into this in a Goldstein.
So I don't know how the data substitutes for the paper.
>> Your Honor, I simply stated that the Goldstein decision talks
about electronic application of the signature.
So that has to be done.
>> And perhaps we obviously didn't envision this in Goldstein,
and that's what where your spirit argument comes in.
>> Yes, Your Honor.
>> OK. Thank you.
I have no further questions, Chief.
>> Justice Lowy.
>> Yes. Good afternoon, Mr. Kenney.
I'm not as concerned about whether or not in the end, the signatures are
on new nomination papers, and not the actual nomination papers or not.
I'm more concerned with the argument that we have heard from our police
about the potential use of these letter signatures to be applied
to other documents and the implications of that.
Could you address that, please?
>> Yes, Justice Lowy.
Thank you.
That concern about whether they could be misused is entirely hypothetical, and in fact,
is not an active concern here because the State Ballot Law Commission specifically found
in paragraph 24 of their findings of fact, which is that record appendix page 109
that there was no testimony or evidence presented indicating that the signature images
or any other voter information obtained on behalf of respondent were used or applied
to any other documents or nomination paper other than those, the respondent.
There were testimony from Mr. Fitzgibbons which we credit that no such thing was done
with this information collected by the candidates we used VenueX.
So it's a strictly hypothetical concern.
There are concerns with the old paper ballot.
We know from one of the cases that the Secretary cited in a footnote in her brief,
that somebody put a different VenueX paper on a clipboard and sort of tricked people
into signing that with wet signatures.
So there's always a hypothetical possibility.
Here, however, it's been put entirely to rest by the Ballot Commission itself.
>> OK. Just one more question.
This doesn't go to constitutional issues, it goes to what type of review we're looking here.
This is 38 review as it relates to the State Ballot Box Commission.
And you referenced in your argument that this is really de novo review
of the Secretary of State's advisory.
But it was -- we really, in Goldstein, talked about having the Secretary
of State provide guidance to prospective candidates about this whole issue
of electronic signature collection.
So what does that say about the level of review that we should be given to the advisory?
>> Your Honor, the secretary of state's advisory is not accorded the force of law.
That's from the Mass General Hospital case I cited earlier.
It simply didn't go through the notice
and comment process that's necessary for it to have the force of law.
It's a guide.
It's a reference, but it does not have the force of law and cannot be given any weight
in the adjudicatory process here.
>> Even though it was really as a result of the -- an order of this court to the secretary?
>> Yes, Your Honor.
The language on the court in Goldstein at the -- orders the secretary to provide clear guidance
that may assist the voters in effectively achieving this.
But it doesn't say shall be used, must be used.
Its guide and under the Mass General Hospital case, it is not the force of law.
The Goldstein decisions [inaudible].
Thank you.
>> Justice Lowy, any further questions?
>> No, thank you.
>> OK. Justice Cypher?
>> Thank you.
I may have missed this in the filings but it's -- this backup -- so actually not the backups,
but the original electronic version of these signatures.
Does that still exist or does that gets converted and changed?
>> Yes, they still exist.
>> OK. Thank you.
I have --
>> Thank you, Your Honor.
Just the fact that they were marked as an exhibit
at the state federal law commission hearing.
>> OK. Do you know which number that is?
Is that -- I was looking at some, so I'll find it.
>> [Inaudible] I believe, Your Honor, it was Exhibit 7
and 7a at the State Ballot Law Commission trial and --
>> OK.
>> -- I can get you the appendix for that --
>> That's fine.
I can do that.
Thanks.
>> Thank you.
>> I have no further questions.
>> And Mr. Kenney, I have a couple of questions.
I mean, is anyone actually using the exact Goldstein standard out there?
Or, is everyone sort of improvising some?
>> Your Honor, at the State Ballot Law Commission hearing there was no evidence
presented of any other methodology other than Brian Fitzgibbons
of VenueX that met the Goldstein standard.
There was absolutely a dearth of evidence presented.
>> Well, was anyone doing literally taking the electronic documents signed
and emailing that document?
Or, was everyone -- all the different methodologies out there are different from that?
Whether they're in compliance with Goldstein or not,
was anyone actually taking the electronic document with the signature
and then making a PDF of that and sending that in?
Or, was everyone doing some variation, some slight variation on all of that?
Meaning not just your clients, but all of the people using electronic signatures out there?
>> Yes. The best I can say, Justice Kafker, is that Mr. Fitzgibbons worked
with 40 other candidates, and that we know that four candidates
who have made the ballot work with his system.
Those were Hall, Colarusso and Kevin O'Connor.
Campbell used the system but did not get the number of signatures necessary.
And Brady used it and got the requisite number, and they were certified.
But here we are.
So we're hoping that she'll be the fourth one that makes the ballot.
>> And just in terms of form versus substance, is there any substantive difference?
I understand that, you know, capitalization may be -- some of the text is capitalized.
But is there anything substantive different from what was sent in from --
as opposed to what was signed or is it just, you know, the -- some difference in capital,
there's some difference in placement, anything substantive different?
>> No, Your Honor.
The voters input all of the data into a database that was stored and electronically applied
to an image of the nomination form.
So it was the voter's creation.
That was [inaudible] --
>> I understand the voter information was exactly was the same.
I'm trying to understand was --
because I understand why we don't want to have a nomination paper that is changed
that the voter looked at one nomination paper.
And then the Ballot Commission is seeing a different one.
That seems to me troublesome, but it seems like --
and there is a difference in the document here, but there's no substantive difference.
Is that correct?
>> That's correct, Your Honor.
And it goes to the point you made about form over substance
because the commission itself made a specific finding in paragraph 25
and its findings the fact that it credits Mr. Fitzgibbons' testimony and received no evidence
to the contrary, that the person listed on the petitions sent to the campaign
and subsequently certified a local registrar had, in fact, signed or at least made some mark
with computer mouse or stylus in the signature box before clicking Submit on the screen
to place respondee's name on the ballot.
In other words, the State Ballot Law Commission is found that these 1,066 voters actually signed
in the signature box to indicate their intent and desire
for Ms. Helen Brady to be placed on the ballot.
And that's the substance, Your Honor.
That's the substance [inaudible] --
>> Yeah. Well, mine's a slightly different point.
I understand that the ballot commission wants to make sure
that the voter signed the same document saw meaning reviewed the same document
that is being submitted to the Ballot Commission
so that you didn't change some substantive part of that paper.
But it doesn't sound like that occurred here.
It seems undisputed that the substance of what the voter looked at and the substance
of what was sent in is exactly the same.
Forget about what the voter added to it.
I'm talking about the nomination paper itself.
>> Yes, Your Honor.
That's correct.
>> And one last question.
If we're uncomfortable about this information as Justice Lowy just pointed out being collected
and potentially used, could we order it destroyed or is there something
in the election laws that requires those documents to be saved over time?
>> I don't believe there is, Your Honor.
I believe that the court could require them to be destroyed.
And I would note --
>> OK. That's all I have.
>> -- that in the subsequent decision, subsequent rulings from the court, you know,
Dennis and better future project and Christian, the single justices have evolved the standard,
have brought it along and now have a specific requirements with regard
to preserving information and limiting the inquiry of personal information.
So the system's work, the problem is that Goldstein was the first crack
at this under an emergency condition.
And the court did the best it could.
It's in a much better place now with the orders issuing.
And virtually all of the concerns have been addressed in the newer orders that I've listed.
It would be unfair to apply those retroactively
to Helen Brady who's governed by the Goldstein standard.
>> Thank you.
That's all I have.
>> Mr. Chief Justice --
>> Thank you, Your Honor.
>> -- I've got a few questions, Mr. Kenney.
It is my understanding from the record and please correct me if I'm wrong,
that when a voter filled out the form, Brady, that after signing it electronically,
the voters got back an email, essentially saying you have just, you know,
signed the nomination paper for Mr. Brady, and here is a PDF of what you have signed.
Is that correct?
>> That's correct, Your Honor.
We refer to it as a receipt.
>> A receipt.
But a receipt is actually essentially a PDF of what the person actually filled out.
>> Yes, Your Honor.
>> So that one was not one that you sort of redid.
That was simply -- that was essentially simply precisely what the voter had signed.
>> Yes.
>> So I guess the question -- I'm not sure the record reflects it, why not just gather those up
and just submit the PDFs, as opposed to taking the names, taking the signatures,
doing this so called mail merge, and then creating another document
and then inserting it into another document?
>> I'm not sure, Your Honor, I believe from Mr. Fitzgibbons' testimony
that it was an issue of efficiency.
Doing this, you know, where they would print out my town was more efficient.
There was also a date stamp on the receipt.
And that also was another indicia of reliability that the voter got back confirming
that it was their input and when we dated and signed.
>> But that's on the PDF, the date stamp.
>> Yes, that's right, Your Honor.
>> And then apparently you sort of typed in the date.
If the date typed in onto the form that was actually submitted --
is that right -- am I correct with that?
>> None of the ones actually submitted, only on the receipt
that goes back to the voter, Your Honor.
>> OK. But there is a -- there's a type name that's inserted.
>> Yeah.
>> So --
>> Yes. The voter types it into a signature box.
And that is a -- that's probably marked sign here for the signature line.
They type that in.
That is applied to the receipt and comes out with the date stamp that the voter gets.
So there's no -- you know, the voter was not going to be hoodwinked.
They have a receipt of what they actually did.
And then that same data is then electronically applied to an image of the nomination form
that is printed out and filed with the Registrar's and the Secretary.
>> OK. So what do you say we should do if we say, you know,
[inaudible] just sent him the PDF?
And we're not thrilled about knowing what happened here to be done because it is --
it has a potential for fraud or no indication that there was any fraud here.
How do you basically say, we understand that all the people who purported to sign actually did?
So we're not worried about fraud here, but we're not really prepared
to bless what actually happened in this case.
What do we do?
>> We were in a closed window, Your Honor.
The Goldstein decision is limited by its express terms to this primary election.
Ms. Brady, as my understanding is, she's the only one affected
in this circumstance, no one else.
No other candidate, to my knowledge,
has been challenged based upon this electronic signature process that's an issue
in this case today.
In other words, I don't think this is going to repeat itself.
I don't think the court would be blessing a process as precedent
that would come back to haunt anyone.
I think rather it would be viewed as inequity, a way to play substance over form
and to effectuate the voter's intent when 1,066
of them undisputedly voted their signatures to put her on the ballot.
So I don't think it's a problem like that, Your Honor.
>> Right.
>> It's not like [inaudible].
>> I'm sorry.
Well, I mean, we hope not.
[ Inaudible ]
>> Oh that's true.
>> So are there any further questions, if any of the justices?
>> Can I ask a follow up question on your PDF?
>> Justice Kafker.
>> Does the PDF contain the full nomination paper as well or is the PDF --
so the PDF would include the document that the person saw and the signature,
so everything would be in that PDF.
>> Everything, Your Honor.
Everything.
>> OK. All right.
Thank you
>> Question?
Hearing none, thank you and [inaudible].
>> Chief, one point is your voice is hard to hear unlike everyone else.
>> Oh, I'm sorry.
[ Inaudible ]
So, please tell me if that's the problem.
>> It's a little better.
>> OK. It's because I'm on speaker.
So generally it's better without speaker, but -- OK, I will stop mumbling.
Kaplan, you may proceed.
>> Thank you, Chief Justice.
Good afternoon, Your Honor.
In Goldstein, the court addressed a specific problem which was
that candidates could not connect with voters in public places
to obtain signatures on nomination papers.
Therefore the court made limited accommodations for the candidates,
including allowing a narrow form of electronic signal --
>> Now joining --
>> -- that --
>> Jim Roosevelt [assumed spelling].
>> -- that mirrored as closely as possible the usual process for collecting signatures.
The Goldstein process essentially allowed candidates
to convey nomination papers electronically to voters who were for the most part remaining
in their homes and then for the voters to convey the nomination papers back to the campaign.
Goldstein did this by allowing a voter to first download an image of a nomination paper
and then either print out a hardcopy which there is no evidence that anyone did here,
or apply an electronic signature with a computer mouse or stylus to the nomination paper.
The voter could then return the nomination paper electronically to the campaign
by transmitting either the native electronic document or a scanned paper version.
Applying this language to brand new software, the commission reasonably concluded
that the software does not comply
with the limited electronic process this court envisioned for several reasons.
First, in the software, the voter is not applying an electronic signature
to the nomination paper that is to be filed with the clerk.
Rather, the voter enters the signature into a box which has to be later applied
to the actual nomination paper that gets filed.
The voter also is not returning a native electronic document to the campaign,
but is instead simply sending their data and an image of their signature to a third party,
which then later generates documents through this mail merge process.
Now, Brady tries to contort this language from Goldstein by suggesting
that voters data went to VenueX in its native form.
But the common meeting of a native electronic document isn't just raw data
that has been removed from the document on which it was placed and stored
in a separate spreadsheet, but rather the signed document itself.
This conclusion is also consistent with the Secretary's advisory,
which issued at the courts directions implement Goldstein.
The Secretary advised that a voter must apply their signature to the nomination paper
in person and in real time, suggesting that the signature is applied
to the final nomination paper at the time that the voter signs and not at some later date.
Finally, all of this is not merely technical hairsplitting.
Goldstein authorized a narrow form of electronic process that had never been allowed before.
And this software simply failed to adhere to that process.
Moreover, the commission is specifically tasked in its authorizing statute with responding
to claims of fraud, and indeed has seen bait and switch type fraud in the past.
So there wasn't any evidence of that here.
The Commission was rightfully concerned about allowing the use of software
that has the capacity to easily apply voters signatures to something
that they did not intend to sign.
And with that, I'll take the court questions.
>> Thank you.
Thank you.
Justice Lenk.
>> Hi. Am I off of mute now or am I still on mute?
>> No, you're good.
>> I'm good?
All right.
Good. So, let's start with the last part.
If you're so concerned about fraud, why aren't you concerned
about the other 37 people using the same software?
>> Unfortunately, as I think we've discussed in our brief, the --
neither the Secretary nor the Commission has the authority to act
as a roving investigatory authority investigating into the process
by which candidates gather their signatures.
Chapter 53 actually requires the Secretary to limit his review
when he received nomination papers to the face of the paper itself.
And so it's on the face of the paper,
it appears that all the information that's required is there,
the Secretary doesn't have any further authority to reject those papers by virtue of the process
by which the candidate used or by which the candidate gathered them.
>> Are you saying that the Secretary in fact had --
the actual knowledge that there was a terrible fraud going on in one person's campaign,
and nobody complained about it that the Secretary had no authority whatsoever
to investigate, nothing to do about it?
Actual knowledge of fraud.
>> Don't believe the secretary wouldn't necessarily have anything that he could do
about that, however, in an event where the Secretary has actual knowledge of fraud --
>> Now exiting.
>> -- that that is --
>> Jim Roosevelt.
>> -- would also be available to candidates who are -- not necessarily to candidates,
but to registered voters in the district of the candidate who committed the fraud,
and would have the ability to raise an objection before the commission.
>> Four people could raise an objection, but there's --
could the Secretary communicate to people that there was a fraud going
on that he had actual knowledge of so as to evoke a complaint?
I'm just wondering if you are to sit silently by and watch as fraud is being committed
in a way people gather papers, gather signatures and knowing that --
having actual knowledge of fraud, did the Secretary standby and do nothing?
>> My understanding is that the Secretary is not empowered to independently investigate fraud,
but I would have to confer with my client with respect to whether there are any limitations
on the Secretary sharing that information with a registered voter who would be capable
of filing an objection in that circumstance.
>> OK, thanks.
I don't have anything else.
>> -- a letter to the court after the argument with respect to that question
if the court would be interested.
>> I'd be -- I don't know if she's interested.
If she's interested?
>> I'm happy to view the answer to that.
>> OK, good.
Fine. Then [inaudible], thanks.
>> Justice Gaziano?
>> Just one quick question that the board found that there was a violation
or the Commission find that there was a public policy violation.
They saw that kind of, I guess, reckless use of the signatures.
But when you say public policy, is that which we recognize
in our decision regarding ballot access during the pandemic?
So that finding of a breach of public policy doesn't take that into account.
>> I think the commission, like any administrative agency is required
to consider the reasonable implications of the matter before them.
And so, you know, that is an issue that the Commission considers.
It's clearly an issue that others have recognized as relevant to this question
by virtue of the fact that that issue was raised in the Dennis
and other subsequent orders implementing Goldstein.
So I don't think there's anything that bars the commission from considering that issue.
But I do want to emphasize that the Commission's main reasoning here is not the public policy
considerations related to voter information privacy, but rather the fact
that the process used here does not comply with the process set forth in Goldstein.
>> Right, to the extent that they consider public policy.
They probably should have considered ballot access public policy, correct?
>> Certainly, the question of accessing the ballot is always before the Commission's.
But the Commission's role is to ensure that the election laws are faithfully adhered to.
And sometimes that may result in what may appear at some level
to be a highly technical application of the law to the fact that the nature of election laws is
that they are highly technical, and that there's a reason why strict application
of those laws is required.
And that's because that's what we need in order to ensure an orderly administration of elections
that give equal chance to all candidates to participate and set forth the same rules
for every candidate to participate.
>> Thank you.
>> Justice Lowy.
>> Thank you.
Yup And I just want to follow up on Gaziano's point a little.
Let's assume that the process here did not comply with the letter of Goldstein
as it relates to the signatures that were submitted.
Didn't we recognize Goldstein that there were a lot of unanswered questions here?
And we're dealing with trying to address ballot access in the midst of a pandemic.
And even if the Ballot Commission is correct, as to its interpretation of Goldstein,
that we have a bit of a moving target in the midst of a pandemic,
and that it really would work an injustice here as Justice Gaziano was asking
about if we didn't have access here to this candidate.
What would be the response to that?
>> Your Honor, I think this court absolutely did recognize that we were faced with a lot
of unanswered questions at the time the court decided Goldstein.
And the reason that was one of the driving reasons why the court specifically allowed only
a very narrow form of electronic signature gathering.
The court recognized that ordinarily this kind of what is effectively a determination
of public policy to even allow electronic signature gathering is something
that would be reserved for the legislature.
And so, I think when the court decided to do that, it specifically struck a line that was
as close as possible to maintaining our current election laws which the court in Goldstein
and in prior cases had already held to be constitutional.
So I think that what the court did in Goldstein was strike a very narrow path
that allowed certain forms of electronic signature gathering that essentially came
down to the voter receiving an electronic nomination paper, signing that paper
and returning that paper back to the campaign and nothing more.
And I think that --
>> Well, I think that's a good point.
I think that's a clear point that we were concerned
about having too broad a definition of electronic signatures.
But one of the reasons for that was that there were so many issues out there
and so many unanswered questions about how well this would work, that that's where we work,
and things seem to be moving at an awful rapid pace in the midst of a pandemic.
And are we stuck in a stone with that right now?
>> I think the answer is yes, Your Honor.
Goldstein was issued at a time when all candidates were still collecting signatures.
And Goldstein effectively altered the --
>> Now existing.
>> Barbara Lenk
>> -- for that process, and I think too, after the fact say, well, the facts were --
>> Now joining.
>> -- and --
>> Jim Roosevelt.
>> -- Perhaps, we should have either been more clear in what we said or adopted
as a different form of electronic signature gathering or been more flexible.
That would be to change the rules after the fact.
And in general, we don't do that in the election context.
We make the rules clear before the deadline for candidates to file their nomination papers.
>> Thank you, [inaudible].
That's all I had, Chief.
>> Justice Cypher.
>> Thank you.
Counsel, often when dealing with electronic issues and law,
we look for an analog comparison.
Do you have any cases that are an analog comparison that would deal
with the basic old paper cases that would be similar to this?
>> I have a few, Your Honor.
I'm not sure if this is exactly what you're looking for since they don't,
for obvious reasons, deal with the electronic context.
>> Right. But I'm just looking for a good comparison.
>> Certainly.
>> Now, joining.
>> Barbara Lenk.
>> -- The Garrison versus Merced case, which is 33 mass appeals court 116.
That case had to do with the failure of a party candidate
to include their party name on their nomination form.
And that candidate was ultimately barred from the ballot because the rules
for nomination papers require the party name to be on the nomination form.
And the reason I think that case is particularly analogous here is that the reason
to put a party name on the nomination form is
so that the people signing know what party this person is seeking the nomination of.
And in that case, the court actually said there's no evidence that any voter was misled
that this person was taking the Democratic nomination.
But yet we demand strict adherence to what's required on the nomination form,
because we need to be concerned about the possibility that a voter could be misled.
I would also direct your court to -- the court to this Court's decisions in Walsh,
which is 430 Mass [phonetic] 103 and [inaudible], which is 427, Mass 825.
And this, you know, in similar contexts was requiring exact copies of ballot petitions
to be circulated to voters to sign.
And in particular, in the first case, it talked about extraneous marks that might be
on ballot petition, even marks that weren't even necessarily intended to mislead voters.
And the Court said, we can't allow extraneous marks because of the potential to mislead voters
and we're not going to get into an ad hoc analysis
of whether these particular excess marks would have misled voters or not.
So in general, the courts have required strict adherence to what the election laws demand.
And I think this kind of departure is not simply elevating form over substance,
but would be allowing an entire process that goes beyond the process of this court envisioned
when it allow electronic signature gathering under Goldstein.
>> OK. One more question.
And my -- I thought I understood this until I was listening to these arguments.
And that is the other candidates who filed electronically.
Did they use the same software program or were they using different programs
that they referred to her software consultant?
>> To be clear, there is no evidence before the Commission with respect to what software,
if any, any other particular candidates here.
There was --
>> If you don't know.
>> We don't know.
That's right.
We know that ultimately, I think it was approximately 380 candidates statewide got
onto the ballot for the upcoming September primaries.
So there were certainly many candidates who got onto the ballot
without using this particular software.
But whether those other candidates use other forms of software,
whether they tried other forms of software and then --
>> But so do you know that she's the --
that the candidate is the only person who used the software?
>> No, we know that there are at least two candidates who will be
on the ballot who used this software.
>> But no one complained?
>> But no one complained as to those candidates.
>> OK. I'm content.
Thank you.
>> Justice Kafker.
>> Well, we know the 38 others used too, right?
>> Yes.
>> We know the 38 -- he testified, he's the only witness.
He said 38 people used it, right?
>> Yes, although we don't know whether they used it exclusively
or even whether they filed any papers that they collected in that form.
>> And, again, back to form versus substance because this is important, right?
This is whether the voters of this district have a choice, right?
Is there anything substantive different from what was filed
from what was signed by the voter?
Anything at all given me one bit of substance?
>> When you ask about substance, Your Honor, are you referring to the content or specific --
>> Yeah, the content -- this isn't a case where the voter was shown or slaughtering it in one
of the cases and actually was voting on, I can't remember, a gay marriage initiative
like it was something totally different.
Was there anything substantive, anything substantive different
from what the voters saw versus what was submitted?
No, what the voters saw was a version of Helen Brady's nomination papers.
And ultimately, what was later submitted was a different version
of Helen Brady's nomination papers.
>> And it is -- the difference is there was a couple of capitalizations
and there's some spacing issues where --
whether it was above the signature line as opposed to in a box, right?
Literally, we're talking about computer programming differences, right?
>> Yes.
>> And that is, we're comfortable knocking someone off a ballot on this kind of technical,
basically a trap for the technologically unaware.
That's how we're going to -- we're going to decide who gets
to vote for Congress for that purpose.
>> I would disagree with that final characterization, Your Honor.
What -- Tell me why it's wrong?
>> I think it's wrong because I think the language
of Goldstein is clear as to what was permitted.
And I think that this program does not comply with the language of Goldstein.
So it's not merely elevating form over substance.
It's saying this Court issued a ruling and this candidate,
and admittedly some others went outside of what this Court allowed in its ruling.
And to allow her to get on the ballot would be to allow her to get on the ballot
without effectively complying with the election laws as they stood at that time.
>> Didn't our decision -- again -- and again, I was a concurrence not --
because I was concerned about this kind of technical, you know, kind of non --
technical noncompliance as opposed to actual noncompliance.
But is there, again, anything meaningful here?
Because we know from the PDFs, that it's the exact same document.
We know there was no fraud.
Nonetheless -- and we also -- the SJC was asking the Secretary of State's Office
to provide guidance on how to do this.
It doesn't look like there was much in the way a guidance, was there?
What was the guidance they provided on how to do this
so that we wouldn't have this type of technical issue?
>> Guidance that was provided, I think, the key language was
that the voter may use 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.
>> Didn't, by the way, having you all agreed in the subsequent decisions, both the Secretary
of State and the AG's Office [phonetic], as well as the opposing parties that it doesn't need
to be on the signature line, it can be moved, as long as it's on the document.
It doesn't need to be on the exact signature line, because again,
technical computer issues at that race, right?
We've moved beyond that point.
Have we?
>> I'm not sure about that.
I'm not sure I'm understanding, Your Honor, correctly.
But I will say that the Dennis order, which was the order that pertained to ballot petitions
that came out very shortly after Goldstein had a provision that said the signature is affixed
to the electronic version of the form, in a manner where its position
on the document cannot be changed.
So the issue is not --
>> Isn't that exactly what we've done here?
>> No, Your Honor.
Our --
>> Dennis changed compliant with -- isn't that compliant with what was asked for in Dennis?
>> I'm sorry, I don't understand your question, Your Honor.
>> In Dennis, there was the party's, meaning the AG's office, the Secretary of State
and the ballot people all agreed to a modification
of that signature line required, right?
They all thought it was kind of overly technical and agreed to allow that change, right?
>> They agreed to the -- obviously the language of the judgment in Dennis, which I'm not --
I have to say I'm unfortunately not familiar with the above the line
or below the line issue that you're raising.
However, it's very clear that they agreed to language that would require the signature
to be affixed to a specific spot on the form and not move thereafter.
And in the defendant's opinion, this software would not necessarily comply with that
because it does not affix a signature to a place on a nomination form
where that nomination form is then sent off to the clerk's offices to be reviewed.
Instead, it takes a signature in a box essentially captures an image of that signature
in a spreadsheet or in a combined file of signatures and later applies those images
of the signatures to other nomination papers.
So the signature is not affixed to what the voter originally signed.
>> My last questions.
If we're concerned about the security of these store documents, can we order them destroyed
or is there some election law or public document retention requirement
that we would be violating if we did that?
>> My understanding, Your Honor, is that the only public documents
that couldn't be destroyed are those nomination papers
that were eventually filed with the Secretary's Office.
So there's been some discussion in this single justice proceeding
and with my brother this afternoon about Exhibit 7 and 7a, which are impounded.
Those are the input files, which is the actual data that the voters submitted
on Helen Brady's website that contains data that exceeds the information
that normally must be put on nomination papers when a voter is signing.
That data is maintained by the private company here,
not by the Secretary's Office, so I don't believe --
>> So we could order, we could order that destroyed.
We could order that destroyed then.
>> I believe it's in the hands of a private company.
I'm not certain that -- well, I suppose this court could potentially order it destroyed.
Even if it's in the hands of the private company, I would have to confer
with my client about that as well.
>> OK, thank you.
That's all I have.
>> This is Chief Justice Gants.
If they had submitted -- if Ms. Brady has submitted the PDF with the thousands
of signatures as opposed to what they did, would you be here?
>> I'm sorry, the PDFs would be 1,000.
Do you mean the original PDF receipts that were returned to the voters?
>> Right. That they simply -- They had simply -- when they emailed it to the voter,
had copied themselves and printed those out and submitted those.
Would that be in compliance with the law?
>> I believe it would, Your Honor.
The Goldstein decision clearly says that if you apply your signature to a nomination paper
and print it out and send it back, that is an acceptable form
of electronic signature gathering.
The real issue here, Your Honor, is with receiving the data that is --
appears as if it's been affixed to a nomination paper, but instead of submitting
that nomination paper back to the campaign, it's simply sending the raw data divorce
from the nomination paper to the private company later to be mail merged onto a new document.
>> OK. So let's explore that.
By saying the PDF would be sufficient, I think you are conceding, I think,
appropriately so that the location of the signature is not enough
to defeat Ms. Brady's nomination?
>> No, I don't think -- well, it might come down to an analysis
of the actual individual signatures that were submitted in that case,
because the local election officials have to be able to look at the form and determine who it is
that is signing this nomination paper and whether in fact they are registered
at the address that's shown there.
So it may be that in some circumstances, those original PDF,
the signature was not legible enough in order to know which voter this was.
So not possible that not all of these --
if the campaign had simply sent in what was originally issued to the voter as a receipt,
that not all 1,066 signatures would have been certified.
And if that's a bit confusing, I direct Your Honor to the example in Commission Exhibit 5,
which is volume 13, page 10 of the administrative record.
So there you can see -- this is actually a receipt for a nomination submitted
to Rayla Campbell, not to Helen Brady, but the system works the same way.
You can see that the signature in that particular example is not really legible.
You can't tell the name of the voter that's signing here.
And in those original receipts, the voter's name was not printed next to the signature
so it's possible that this particular signature would not have been certified.
However, in terms of the principle of the thing,
I'm not sure that the commission would have had a problem with the process
if the receipts themselves had been returned to the campaign instead
of the new nomination papers that were generated after the mail merge.
>> But substantively, the -- you have much more information about the voters who signed it
than if you had gone to town center and had the person sign his or her signature,
or you'd have a signature, you wouldn't even have the name, you wouldn't have all --
you wouldn't have all the other information which was on that PDF which could allow you
to verify the identity of the voter.
>> There's no additional information on this PDF, except there's a small stamp that says,
signed at and there's a date and time that this was signed.
But otherwise, this is essentially the same information that you would have if you went
to town center and asked voters to sign a nomination paper.
You would have the signature of this individual.
Hopefully you can read it or you would have a printed name next to it,
and then you have the address at which they are registered.
I don't think that this program provides any additional assurances
that this is necessarily the person who signed then in the ordinary context.
>> Right. So you've identified some medications [phonetic].
But are there any cases -- I mean, there's no dispute that more
than a thousand people signed nomination papers for Helen Brady.
Correct?
>> Yeah, that's correct.
>> And that they knew that she was a Republican.
>> Yeah.
>> And they knew that she was running for the particular district
against Representative Keating, although his name probably missed
out on it, but they knew the district.
>> Yeah.
>> So is there any case we have -- you mentioned the case
where they may not be sure at the party.
But that's not a problem here.
And is there any case in which we can say yes, we know --
>> Now exiting.
>> Jim Roosevelt.
>> -- is there anything -- which we know that more than a thousand people signed,
and yet we say because of a matter of form, essentially,
because the person here did not send in the PDFs, did their mail merge
that we're going to say you can't do it.
>> Well, by definition, we don't have any other examples involving electronic signatures
because this is new.
However, just have a moment.
>> You can have nomination papers with real signatures for quite a long time.
But I don't know of any case in which we say, yeah, we got the necessary minor signatures.
But there is something about it.
And we know that the person sought to nominate you for this particular position
from this particular political party that we're still going to sign up.
>> Well, in that Garrison case that I mentioned, as I said, there's no evidence
that the voters did not know that they were nominating that particular candidate
for the nomination for Democrats.
But rather, it was the absence of information available to them, or was the absence
of information required under the statute that made these nomination papers insufficient.
And I think this is a similar context in which the voter could have been misled,
was not in fact misled, but could have been misled by virtue of the use of a process
where what was ultimately submitted was not the same
as the document that she fixed her signature to.
>> Where in Goldstein -- I know Goldstein says
that the Secretary shall accept electronic signatures as described in the opinion.
And I know that the opinion authorizes this.
But you argued that it's more than a safe harbor.
You argue that it is an absolute defining element and that if somebody were
to say we have another way to do it, but we would say no, no, no, you can't.
We will not consider another way to do it because Goldstein defines the only way to do it.
What is the language we're focusing on to interpret Goldstein
in saying, it's this way or no way?
>> Goldstein specifically discussed that ordinarily, this court would defer
to the legislature in terms of making what is essentially a new determination of policy
like this, that electronic signatures are going to be allowed at all.
And the language that I would point the court to is our remedy must be no more intrusive
than it ought reasonably to be to ensure the accomplishment of the legally justified results.
Here what was legally justified was a very --
a relatively narrow alteration to the usual process by which signatures are gathered
that essentially allowed candidates to reach voters in their homes,
rather than having to approach them on the street.
>> OK. I have no further questions.
Are there any further questions to Ms. Kaplan from any of the justices?
And hearing none, we thank you.
And we'll turn to you Mr. McDonough.
You have five minutes.
>> Thank you.
And good afternoon, Your Honor.
I'm Gerald McDonough, may I please the Court counsel for the intervenors, appelees,
Massachusetts Democratic Party and Leon, Arthur, Brathwaite, the second, the objector,
and the underlying proceeding in front of the State Ballot Law Commission.
I'm not going to go into great, great detail here.
I think what I'd like to do is to try to respond to some of the questions that have been asked
and I might have a different wrinkle in the way that I respond to them regarding
for example, the speeding argument.
I think it's more appropriate to say that Helen Brady was the only person who was pulled
over by the state police and the State Ballot when the objection was filed
and then the State Ballot Law Commission gave her the ticket.
I don't think it's appropriate to say that the other --
this is similar to other people being pulled over.
Regarding the difference in the nomination papers between the PDF if there is one
that was the original one that was signed by the voter and the one that was submitted
to the local registrar's, a critical important difference in there is that the name
of the voter on the final PDF that was not shown to the voter initially has a typewritten version
of the person's name on the signature line.
Now, that is incredibly important because there is no way local registrar's in the normal course
of events would have approved as many of these nomination papers as they did,
but for that name appearing on that signature line.
For example, there are at least 15 nomination papers we have,
where the signature line is blank except for that type name
of the voter that was put in by the vendor.
There are other signatures which are just initials, which are not permissible.
And then there are illegible signatures
that no single registrar would be able to ascertain who the signer was.
And I can just suggest you look at the exhibits that we filed.
When this case was initially filed, we had two grounds for it.
One was for the electronic signatures, and we didn't have much information on that.
Most of the information that we have in this before you comes
from Mr. Fitzgibbons' testimony before the Commission.
And the other ground was that we thought that there were hundreds of nomination papers
that were illegible, there was no name there, there were initials that were put in there,
the commission, they'll put that question aside and dealt with electronic signatures.
But if you took the PDF originally and sent those back to the registrar's
without the printed name of the voter, there was no way that the registrar's would have been able
to ascertain hundreds of those signatures.
They're just illegible.
Now, regarding the question about fraud, nobody is alleging fraud in this case,
but I know that the Secretary has the authority and I can't find the statute at this point
in time to investigate issues of fraud in different election procedures.
And I myself have filed a request to the Elections Division at one time
to investigate allegations of fraud.
And I think that the issue about other vendors who use this, I would suggest that you look
at my brief and look at the long -- on page 20, you look at the long recitation of information
by Mr. Fitzgibbons where he precisely testifies
that other vendors were following the instructions in the Goldstein case.
The problem they had was they didn't get as many positive results
as Mr. Fitzgibbons was getting with his.
Mr. Gibbons didn't get a 100% return on the signatures either.
There were about 1,400 signatures, electronic signatures that Ms. Brady had and she ended
up with over -- just slightly, you know, 1,066.
So many of his didn't work as well, but he testified that other vendors were using DocuSign
and other kinds of technology that comply completely with the Goldstein provisions.
So with that, Your Honor, the only other thing I would like to say is to the extent
that the appellant here is seeking the court to exercise its equitable jurisdiction
because of the COVID-19 pandemic.
It's important to recommend -- to understand that the appellant itself has some degree
of burden to share here with the pandemic.
The nomination papers were released to candidates on February 11th.
Forty-one days later, the Governor issued his emergency order.
During that entire period of 41 days, the appellant didn't obtain one single signature.
Then over the next however many days it was, 14 days or whatever until we got
to the Goldstein decision, in that period, lots of candidates were sending out nomination papers
by mail, getting them signed and getting return.
The appellant did nothing during that period.
And for 11 days after the Goldstein decision issued on April 16th, again,
the appellant did absolutely nothing.
It was not until April 27th that the appellant got her first signature,
and that electronic signature.
And that signature was obtained eight days before the deadline.
So in a nomination signature gathering timeframe of 84 days, the appellant waited
until the 76th day to start collecting signatures.
So, part of this is their own problem, Your Honors, in terms of her procrastination in this.
And I think that weighs against providing any equitable relief to her.
So with that, I'll take any questions you have.
>> Justice Lenk, any questions?
>> I'm all set, thanks.
>> Justice Gaziano?
>> No questions.
>> Justice Lowy?
>> No, thank you.
>> Justice Cypher?
>> No, I'm fine.
Thank you.
>> Justice Kafker?
[ Inaudible ]
And I've got no questions either.
So thank you, Mr. McDonough.
Before we close Ms. Kaplan, I know we have a deadline to decide.
Is it close the business on the 13th?
Or, is it close the business on the 14th then we need to have a decision?
>> I know that the ballots needs to be finalized by the 14th.
I think close the business on the 13th would be safer because I would be concerned at the end
of the day on the 14th would be too late.
>> Right. So we'd basically have until Monday close the business.
>> Yeah.
>> OK. And we will get it done somehow.
All right.
Thank you all.
>> Bye-bye.
>> Thank you.
>> One second.
Before we leave, our ensemble will be at 3:15.
>> OK, good.
Thanks.
>> OK. Thank you.