>> SJC-12996, Rebecca Grossman and others v the Secretary of the Commonwealth of Massachusetts.
>> Mr. Robbins, your argument, please.
>> Thank you, Your Honor.
Good morning, and may please it please the Court, Jeff Robbins on behalf [inaudible].
With due respect to the Secretary, he breezes and glides past
and does not address because he cannot.
A simple arithmetic fact that [inaudible] that is applied, this regimen,
the regimen in place will leave uncountable numbers of Massachusetts voters who want to vote
in this consequential election and who have fully complied
with the Massachusetts law providing for the alternative of mail-in voting in order
to protect them from the risks or the perceived risks of a pandemic, they'll either not be able
to even vote or will vote and not be able to have their vote counted, effectively bringing
about the disenfranchisement of uncountable numbers of Massachusetts voters complied
with the law and who simply wish to exercise the constitutional right to vote.
We submit that this is unacceptable and that it's unnecessary.
It is wholly unnecessary because, as the reply brief that we filed this morning sets forth
in detail, including in charts to which I respectfully direct your attention,
notwithstanding the generalized nonspecific and somewhat boilerplate assertions
that it will be challenging for the Secretary to comply with deadlines if the date of --
or it may be challenging if the date of counting votes is moved beyond September 1st,
there are approximately seven different reasons set forth in our reply brief why
that generalized assertion is belied by the facts.
These include the fact that election after election after election during the entirety
of the Secretary's tenure each and every primary that has been held has been held later
than September 1st, generally into the second or third week of September without any impact
on his ability to comply with those deadlines, with periods between the counting of the votes
and the general election generally exceeding the 53 days between September 11th
if the Court chooses that date as we've sought and the general election.
Indeed, our neighbors to the south and the north, Rhode Island and New Hampshire,
are themselves holding primaries a week after ours on September 8th with no apparent concern
about meeting the 45-day deadline or any other deadline.
There's no reason why Massachusetts cannot do so, especially where it has held primaries
and counted votes well past September 1st every single federal primary year
since the Secretary became Secretary, usually leaving less time to comply
with the 45-day deadline than there will be
if the Court fully grants us the specific relief we seek and sets September 11th as a date
on which all mail-in ballots will be received.
The sum and substance of it is this:
The generalized assertion the Secretary will be challenged to have to meet the 45-day deadline
or may be challenged depending on various scenarios such that voters
who otherwise will not be able to vote and have their vote counted can vote
and have their votes counted is, meaning no disrespect, a red herring.
Massachusetts voters and families are highly challenged these days trying to cope
with a great many things, including trying to figure out how
to vote in the middle of this pandemic.
There's no need to tell Massachusetts voters who duly comply with the deadlines
for requesting mail-in ballots to protect their health and that of their loved ones
as the Secretary effectively does, let them eat cake.
If you want to vote so badly, assuming you're fortunate enough
to actually receive your ballot in time to do so?
You'll just have to go out and go to a town hall
and deliver your supposedly mail-in ballot in person.
Just wear a mask.
The fact is that there are significant communities,
ones that have been particularly ravaged by this disease -- the elderly, communities of color,
other disabled and all sorts of others who either cannot do this or who, in any event,
should not, need not be forced to do this in order to exercise their constitutional rights.
>> Thank you, Mr. Robbins.
I've got to turn to Justice [inaudible] for the first set of questions.
>> Thank you, Justice Gaziano.
Mr. Robbins, a couple of just quick factual questions if you know the answer.
Are the municipal drop boxes inside buildings or are they outside?
>> I don't know the answer to that question, Your Honor.
They have been -- I have understood from public statements made by the Secretary
that some may be inside, some may be outside.
Of course, people will have to commute and go into public spaces either outside or inside
in order to deliver their supposedly mail-in ballots under this regime.
>> Do you have any sense at all of how difficult it is to obtain a hardship waiver
as to the Secretary's obligations to the federal government for the overseas ballots?
>> Thank you for asking that question, Your Honor, because I think fifth or sixth
in the seven reasons that we list is the fact that, even assuming there was a risk,
a meaningful risk of meeting that 45-day deadline --
and as you know, we say that for five reasons before that, there, in fact, is not,
at least it hasn't been demonstrated -- the Secretary was able as a matter of law,
would have been able to apply for a hardship waiver.
And by law, by operation of laws I hope we have quoted,
one of those bases is the date of the primary.
Another one is a contested election.
Now, it may be the Secretary has waited too long to apply for that waiver.
But if he has, it's evidence that he never thought despite the fact
that there was all this planning about this legislation, he doesn't think even now
that it was necessary to ask for such a waiver.
But at a minimum, the Secretary should not, we submit, be permitted to invoke his own failure
to act and ask for a waiver if he thought there was a real risk as a defense
for the constitutional rights of untold Massachusetts voters being violated.
>> So we've got an issue of what the --
what level of scrutiny we're going to be applying here.
But the issue isn't just simply whether or not the Secretary of State can comply
with federal law or even whether or not he's able
to get the materials necessary to local officials by October 9.
Isn't the issue in considering these deadlines and particularly that the votes be
in by September 1st whether that's, again,
apply the level of scrutiny appropriate is considering all the circumstances whether
that September 1st deadline is reasonable or satisfies intermediate or strict scrutiny?
>> Well, Your Honor, thank you.
For the reasons we've set forth, we think that given the extraordinary burden
that is being placed on a fundamental right, that the scrutiny that is applicable
as in Goldstein where the burden, the constitutional burden was, we said,
suggest significantly less than exists here,
we think that the right standard is strict scrutiny.
However, I will say that, regardless of the level of scrutiny,
this scheme does not satisfy even rational scrutiny because,
for the reasons we've set forth, the math simply guarantees
that people will not get their ballots even in time,
let alone be able to get their ballots back in time.
And the math that I'm referring to, obviously, that basically dictates that,
even if you were to apply a rational basis test -- we don't, by the way, challenge, of course,
the legitimacy of the legislature or the Secretary's right to regulate elections.
Far from it.
But here where as a practical matter, as a matter of law, any one of us can apply
for a ballot as of August 26th or 25th or 24th or 23rd or 22nd.
And we are now being informed by the Postal Service and by the Secretary himself
that you can expect that, even if town officials
who are greatly overburdened somehow have the ability to mail the ballot out the very day
that it's received which is improbable for obvious reasons,
particularly given the massive influx of these requests,
that voters will not even get the ballots by -- within a week, let alone be able to then stand
by the mailbox, complete it in the driveway and put it in the mail and hope
that the US Postal Service stream gets it back in time.
That, we submit, doesn't satisfy any basis, even a minimal analysis,
let alone the strict scrutiny analysis that we've submitted applies here.
>> Thank you Mr. Robbins.
That's all I have.
>> Justice Budd.
>> Hi. My question is this: I think in the materials you mentioned that there is nothing
on the mailing that indicates to voters that the actual ballot have to be
in in order to be counted; is that correct?
>> Your Honor, there is, in fact, I believe it may be attached to the reply brief.
There is a bulletin -- I'm sorry.
We attached I think a copy of the application itself.
The application I believe says in bold font that there must be an application received
by April -- by April -- by August --
>> August.
>> -- 26th but does not say anything about the fact that it has to be received in order
to be counted back in the town hall with election office by September 1st.
That's correct.
>> And then -- I'm sorry.
I wasn't able to hear you when you talked about the standards of [inaudible].
Normally I'm just -- I just want to make sure I understand your argument,
that normally it would be [inaudible] basis but because
of the circumstances [inaudible] strict scrutiny?
>> Well, what we are submitting is as we think the courts have held and this court has held
that where this burden, the constitutional burden is severe, is onerous as this one is,
more so than in the Goldstein case where, from memory,
the Court applied a strict scrutiny test, that the strict scrutiny --
strict scrutiny is what is required.
What I then further said -- and I'm not sure if you were able to hear me, Justice Budd,
is that even, however, if you applied simply a rational basis test to this,
the minimal test, this deadline is irrational.
It's inherently absurd, that there's this internal abolition -- I'm sorry.
>> [Inaudible] Not normally but because of the circumstances we're in right now.
>> Yes. Yes, Your Honor.
>> Yes. Okay.
Thanks so much.
>> Thank you, Your Honor.
>> Justice [inaudible].
>> Yes. Council, one question about the August 26th date.
I noticed in your reply brief, I think it's around page 10,
you said that voters could get a ballot in the mail by -- on August --
by August 26th or on August 26th.
Was there any indication anywhere that voters could get a ballot sooner than August 26th?
>> Well, the mathematic -- the chart in the reply brief
as the Court will see lays out the deadlines.
The voter may apply, may get their application into a town hall, let's say, by August 26th.
They of course may do so.
>> But they can also get it -- they can do it sooner.
>> They can do it sooner.
The problem is that if they do it on the 26th, the 25th, the 24th, the 23rd or last week,
the Postal Service and the Secretary are stipulating
that it may take them a week before they -- before it's transmitted,
before it's effectively returned from --
the ballot itself is returned from the local office to the voter.
And that, by the way, discounts the unknown
which is how long it will take the local officers, burdened as they are
by this influx of applications, to simply --
>> I understand now.
I understand.
Do you have any -- of the cases that you looked at with regard to the level of review
that we should apply when a fundamental right is burdened,
do you have any particular voting rights cases?
Or are they just by analogy that would argue --
>> If I'm correct that in Goldstein there was an indication that strict scrutiny was --
was required -- and I may or may not be correct about that, in candor, that involved a burdening
of constitutional -- of voting rights or of election rights significantly
in my view less serious than existed here in that, there, the Court recognized the burden
for candidates to get on the office by getting --
to get on the ballot by getting signatures and getting votes certified.
Here what we have is, unless I am missing something
and the Secretary has not contended otherwise, we have the virtual guarantee,
the mathematical certainty, if I can say so, that there will be untold voters who according
to the Postal Service and according to the Secretary won't even get their ballots in time
to mail them in and if they do get their ballots,
won't even get their ballots before September 1st.
And if they do get their ballots before September 1st --
>> Right. Again, I understand the deadline issues and the dates.
I have no further questions.
Thank you.
>> All right.
Justice Kafker, please.
>> Mr. Robbins, it's a right to vote, right?
It's not a right to vote by mail.
That's the constitutional right, right?
>> It is a right to vote, Your Honor, but I point to the First Circuit decision
and the Attorney General's own filing in federal court on Friday as evidence
that here it's effectively the same.
>> Well, but it's not, really, because the statute provides a dramatic enhancement
of the right to vote, correct?
It's -- in response to the COVID crisis, the legislature created a plan
that dramatically increased our ability as citizens of Massachusetts to vote, right?
>> I look at it not as an enhancement of the right to vote but as a protection of the right
to vote, understanding that the pandemic and its effects will otherwise make it impossible
or very difficult will, in any event, burden the right to vote.
>> But, again, you're saying the statute on its face is unconstitutional, right?
>> No. I'm saying that as applied here, under these circumstances where,
given what has now been said as of July 30th by the Postal Service and by Secretary Galvin
for the first time on Friday where we are looking at a scenario
in which it will take a week in either direction, under these --
>> So it will take a week for the person who waited to the last --
to the end, right, the person who's requesting it on August 26th.
But that person's also got a bunch of options, right?
They can track their ballot to see if -- there's a database, right?
They can monitor whether they receive the ballot, correct?
They can see where it is in the mail.
And if they haven't gotten it, they have other options, right?
>> Assuming they have computers and are using it and are computer literate.
But I have to take issue with one premise of Your Honor's question.
It's not a week for somebody who applies on August 26th.
It's a week whenever they apply.
It's --
>> They've had since July.
When -- the ballots went out July 23rd, according to you?
They should have gone out earlier, but they went out July 23rd; is that correct?
>> Not the ballots, the applications for the applications for ballots.
The applications for ballots.
So they were permitted to -- they -- if whenever those arrived, voters were given the chance
to apply to send in their application for a ballot.
>> Right. And, again, you have --
and, factually, have all of your clients now received the ballots, all of yours?
>> Yes. All the petitioners since --
>> All the petitioners have their ballots.
They've all gotten theirs.
>> Several [inaudible] have still not received them.
One of the petitioners, a 98-year-old woman in a home, received hers on Saturday.
So she, as with God knows how many other similarly situated people around Massachusetts,
have to find a way to even get out to mail their ballots in time to get it back.
And as I -- I should say that the Secretary is saying that the process of ballot back
and ballot -- ballot one way and ballot the other way should be expected to take two
to three weeks, which would mean that half of that would be ten days or so.
>> Okay. But -- so let's then -- the Secretary also has --
you need the right to challenge the primary as well, right?
That takes time.
The Secretary points to a bunch of deadlines that need to be met.
Aren't those reasonable deadlines?
And isn't it important that our soldiers overseas have --
get their ballots in a timely way, too, so they can vote?
Aren't all those reasonable requirements to be imposed?
>> The 45-day deadline which is a federal deadline, it certainly is reasonable.
The problem is that there's no justification.
There's no --
>> But it's not a 45 -- don't we have to go backwards?
We have -- say your client is in a dead heat, and there's a challenge,
that's going to take time to resolve, too, right?
>> Well, it will take some time to resolve.
But I will point to you --
>> And if we have, for example, a challenge in the Senate which is going
to involve the entire state, that's also -- that could take time to resolve, right?
Doesn't the Secretary need to build that into his time frame?
>> The Court -- the Secretary can factor it in.
I'm simply pointing out the two very prominent recounts bookending the Secretary's tenure
in which there were those recount challenges, the 1996 one with Philip Johnson
and Congressman Delahunt and the one two years ago where there were recounts.
And the recounts were completed, and there was no -- by -- two years ago by September 17th,
in 1996 later; and there still was no evident impact
on the Secretary's ability to meet that 45-day deadline.
So the speculative thought that there may be recounts which I credit
if there may be and there can be.
But the fact of the matter is that, when there have been such recounts,
the Secretary has not had any -- as there have been over the course of the last 25 years
with primaries taking place later in each case than September first,
the fact of the matter is the Secretary has had no difficulty, even with the recounts,
complying with the 45-day deadline.
>> I have no further questions.
Thank you.
>> Thank you, Your Honor.
>> Justice Lenk?
Justice Lenk, do you have any questions?
>> [Inaudible] There you go.
>> Am I off mute now finally?
>> You are.
>> Oh. Can you hear me?
>> Yes, we can.
>> Okay. Good.
I'm sorry.
I muted myself.
Good morning.
I do have a couple of questions, the first one being do you --
could we be clear on what it is you're looking for.
You're looking for relief that would say that if the [inaudible] ballot was postmarked
on the date of the election or before the date of the election, November 3rd --
I'm sorry, September 1st -- for ten days after that, it could be counted, right?
>> Yes, Your Honor.
We're asking for the specific narrowly tailored relief, I must say less narrow
than the Court might on its own suggest -- consider providing and that is that ballots
that are postmarked as of primary day but received up to ten days thereafter be counted.
The ten days are based on a) the seven days minimum that the Postal Service
and Secretary Galvin have both said it may take plus a three-day window to account for the fact
that they say that it's a minimum of seven days --
>> Okay. Now, secondly, the question I had to do with the statute itself that was passed
by the legislature in the midst of a pandemic, they were quite aware
of the fact this was a pandemic, right, when they passed this legislation in 2020?
>> No question about it, Your Honor.
>> Okay. And that's the reason probably for it, huh?
>> Yes.
>> Okay. And they at that time did not make any provision for this --
this problem that we're encountering now, right?
>> Well, I will agree that the August 26th you can apply until August 26th but you have
to get your -- you still have to get your ballot
in by September 1st was not necessarily the best move then, with all due respect.
But, in any event, we are where we are.
Yes. They did know, of course, about the pandemic.
And why it is that this was not provided
for given what might have been expected is beyond my area of expertise.
>> Are we going to have the same problem with the general election
on September 3rd -- on November 3rd?
The ballot is mailed, must be postmarked by November 3rd,
must reach your local election office by September -- November 6th to be counted;
that's what the legislation provides, right?
>> There -- yes.
There is the ability, as I understand it, for certain categories of overseas
and military voters to postmark their ballots by September -- I'm sorry --
by the date of the general election and have them counted as long
as they are received within ten days thereafter.
And so the relief that we seek patterns that.
I note --
>> You're asking for ten days and the legislative provided
in that situation for three, right?
>> I'm sorry, Your Honor.
I couldn't hear you all.
>> You're asking for ten days when the legislature provided
for three even in the general election, right?
>> We're asking for ten days from the date of the postmark on September 1st
until September 11th when the votes would have to -- the ballots would have to be in.
The Court may decide, of course, to grant a shorter period of time, September 8th consistent
with New Hampshire and Rhode Island.
But that is what we are seeking in an effort to maximize the number of people who will be able
to avail themselves of the mail-in feature.
>> They have to be postmarked, right, by a certain date,
by the date of the election system for one?
>> Yes. We're asking that the ballot --
voters would have to postmark their ballots by September 1.
That's correct.
>> How could they ensure that that would be postmarked on September 1.?
How could they assure that?
>> Well, you are right in the sense that you are I think pointing out that there are still voters
who will be unable to do that because they may have complied with the law and applied
by the 24th or '5th or '6th and not even get their ballots in time for September 1st.
And you're correct.
The conservative, the narrow, relatively narrow, the limited relief that we've sought mindful
that the Court wants always to balance the interests of people of the parties involved
and adopt narrow relief you are correct when you suggest
that there are still people who will be disenfranchised.
And so one way you may be wondering, well, how can we reduce further the number of people
who would be disenfranchised because they won't even get their ballots back by September 1st?
And one thing that the Court may wish to suggest in exercising its equitable power would be --
we have not asked for it because we wanted to be as narrow as possible in seeking this relief,
but the Court could, for instance,
extend the date of postmarking the ballots till September 4th with the requirement
on the backend keeping the same of September 11th.
That would surely increase the number of people who could actually participate.
Why? Because the Postal Service is saying if you apply by August 26th, it may take a week
or more between the time that the ballot is mailed to you
by an overburdened postal office and the time that you get it.
So to the extent that you're suggesting that there are still people under the relief
that we seek who will be disenfranchised, I submit that you're correct.
And if the Court wishes to provide more robust relief by expanding the number of people
who will not be disenfranchised, then permitting voters to have their ballots postmarked
by September 4th and still have the votes counted as of September 11th would do that
and would not affect what we say is not a burden on the Secretary
as a practical matter based on the history at all.
>> Okay. Well, it's nice to be correct about something.
But I'm not -- I'm not sure that that was really what I meant.
Okay. I was asking a simpler question is how can we show --
how can we ever be sure if something's going to be postmarked on a certain day?
If you're -- I have a -- let's say I have a ballot and I want to hand it to my mailman.
How do I know it's going to be postmarked as of that day?
>> I mean, we don't.
>> We don't.
None of us do at any time.
This is not necessarily pandemic related.
Just any time.
I mean, we never can be sure something's postmarked on a certain day, right?
>> There is no guarantee the Postal Service will succeed
in delivering ballots in either direction.
>> Delivering.
I mean what does postmarking really mean, though?
>> It means as I understand it it's received and the processing within the mail --
>> There's a stamp on it of some sort.
>> Stamp on it, yes.
>> It says it's postmarked a certain date.
It states the post office got it.
It's not necessarily the same date that the person put it in the mailbox, though.
>> It certain -- no.
Far from it.
>> So, in other words, to be sure something is postmarked a certain day,
you have to actually hand it to the post office person at a post office and watch them stamp it.
>> You are correct, Your Honor.
>> Yeah. All right I.
Don't have anything else.
Thank you.
>> Just a few questions [inaudible] this whole 10-day extension.
You explained that it doesn't seem to be pulled out of a hat.
It's based upon what is happening in Rhode Island, in the up-states
and also the seven days plus three for comfort level.
But let me ask you, on the level of scrutiny, if we decide as Justice Kafker asked you
that there is there is a right to vote.
This is a right to mail-in vote.
And I know you think they're not distinguishable.
But if we apply rational basis, isn't there deference due in that situation
to the legislature and the Secretary of State as far as the timing goes?
>> Your Honor, I -- the best way to answer that is point --
to point to the First Circuit's decision of two weeks ago in the common cause case.
Quote, The burden imposed by these requirements in the midst of the pandemic is significant.
Taking an unusual and, in fact, unnecessary chance
with your life is a heavy burden to bear, simply to vote.
And so we submit that, given what the First Circuit and other courts
and effectively this court in Goldstein in talking about the effects of the pandemic
and the Attorney General herself in the federal filing that she made in federal court
in Pennsylvania which should be attached to our papers that the burden on this vote is so high
that there isn't deference to simply -- there certainly isn't deference in any event
to simply say conclusorily [phonetic spelling] there may be, we may be challenged.
At a minimum, the Secretary ought to be able to demonstrate that there's a real serious,
meaningful likelihood of being unable to do it, which they do not do
and which they'd be hard-pressed to do given --
>> Well, I think the deference is not [inaudible] because obviously we're not dealing
with good solutions, with a perfect world here.
We're dealing with the imperfect.
And the deference that I look at is whether or not this the Secretary can
in good faith comply with this federal mandate.
That's the deference I speak of.
>> And, Your Honor, I'm acutely aware that that is the principal argument.
And that is why we laid out all of the reasons why the generalized we may have these deadlines
that may be a challenge that that doesn't essentially cut it,
if you pardon the vernacular, given what we lay out I think pages 11 forward --
>> The shortest time frame I think I saw from the chart was 49 days?
>> Yeah. That's -- I think that's right.
>> A few of them, that there were a few of them that were 49 days.
That was the shortest time if I remember right, correct?
>> Right. And what we actually -- because we realize that just putting the primary date,
showing that the primaries are held after September 1st was only one half of the equation,
that you would want to know how many days before the 45-day deadline between the primary --
>> And the 49 days just a product of the [inaudible]
of the calendar, not the magic to that, right?
>> No, no.
There's no magic.
The 45 days is the federal statute.
>> Right. Right.
And the 49 days is because of how the calendar laid out, correct?
>> Our point was that in most of the last 12 or 13 elections there has been less time
between the date of the counting and the general election and, therefore,
less time between the primary and the --
>> I assume you may be sensing my discomfort in telling the Secretary
of State don't do 53 days; do 49 days.
>> Oh, I'm not saying that.
>> Given the deference that we should probably owe to the elected official in the legislature.
>> No. I'm not saying you should or shouldn't do.
I'm simply pointing out that in all -- in the vast majority of the election primaries
in the last 25, 26 years there has, in fact, even if you took --
even if you picked September 11th as the date when the votes were counted
and not September 8th as you may choose to do or may consider doing as Rhode Island
and New Hampshire do, there is more time before the mail has to be sent out overseas
than there has been in the majority of the last 12, 13 elections,
the entirety of the Secretary's tenure.
That's the point of --
>> So in -- the overburdened town clerk that you point to in the mailing process,
these are the same overburdened clerks would be responsible for the recount, correct?
>> What do you mean, the recount?
Or is the Court referring to the counting of the ballots as they come in after September 1st?
>> Both, actually.
>> Well --
>> We're dealing with -- we're dealing with these workers who are going to be working
under very extreme circumstances and very trying circumstances.
We should be responsive to that, correct?
>> Yes. Of course.
And I have not heard any -- I've not seen any evidence that --
that it will be difficult to simply count as they come in on a --
every day between September 1st and September 8th or September 11th the ballots that come in.
I haven't seen any suggestion or showing certainly that that imposes much of a burden
at all on the -- on anybody counting.
>> And I guess the bottom line is to be safe in your view and count every vote in your view,
we should at least go to September 8th.
>> I do think that -- yes.
I do think that a week is consistent with New Hampshire and Massachusetts -- strike that --
New Hampshire and Rhode Island --
>> Rhode Island.
>> -- who managed to do it.
And even that, you know, I point out that
that Secretary Galvin has been running these elections without running
into that 45-day deadline past September 8th for most of the last [inaudible] century.
>> And then a recount couldn't start until September 9th in that event.
Someone could call for a recount because you wouldn't know the election results
until September 8th or 9th, right?
>> 8th or 9th.
That's correct.
And if there is, in fact, a recount -- a wholly speculative matter now --
and if there is an issue about how about, when it has to get done,
either this court can set a deadline for it now or another lower court can deal with it
if that becomes an issue where the appropriate parties are concerned.
I point out, incidentally, that the deadline for recounts now -- I think we've said this --
is September 12th for completing recounts.
>> To complete them.
Right.
>> And so --
>> What's the deadline to file for recount [inaudible]?
>> I believe it is three days after so September 4th.
So in fashioning a remedy, the Court could push the deadline for that back two or three days,
as it saw fit, if it even be -- or wait to see
if it actually materialized and then deal with it then.
>> Thank you, Mr. Robbins.
>> Thank you, Your Honor.
Let me now turn to Sterman [phonetic spelling].
>> Thank you, Your Honor.
As the administrator of the Commonwealth Elections,
Secretary Galvin takes very seriously his responsibility to ensure that as many voters
as possible can participate in elections.
And in light of the public health emergency caused by the COVID-19 pandemic, the Secretary
and the legislature have made it easier and safer for people to vote in Massachusetts.
In 2020, for the first time ever, voters can vote early in both the primary
and the general election, either in person or by mail and with no excuse required.
The in-person early voting period
for the general election has been doubled from 10 days to 20.
Every voter in the Commonwealth was mailed an application for a ballot.
Ballots can be returned by mail or by hand, to municipal drop boxes,
early voting sites or local election offices.
The Secretary is making sure that poll workers
across the Commonwealth have personal protective equipment, and he has advised local officials
on how to safely conduct in-person, early and Election Day voting based on input
from public health officials and the Centers For Disease Control.
The combined effect is that Massachusetts voters today have more safe options
to vote than ever before.
The landscape here is not like the ones that the Court faced in Goldstein
where the legislature had not yet acted to adopt --
to adapt the statutory rules to take account for the pandemic.
Rather, here they have made significant efforts to expand voter options.
But while expanding this menu of voting options, the legislature, knowing all the things
that need to happen between the nominating primary
and the federally imposed September 19th UOCAVA deadline to transmit ballots to military
and overseas voters, made a judgment call that ballots need to be received
by September 1st in order to count.
And this is because the Secretary needs to allow time for recounts, objections
and other safeguards before we can know for sure who was nominated at the primary,
and the Secretary can move to doing what needs to be done
to have an orderly election in November.
I would urge the Court to use caution in taking its guidance solely
from the dates of previous year's primaries.
Remember that the 45-day deadline as a matter of federal law did not exist until 2010.
Whether or not the petitioners or this Court agree with every choice the legislature made
in enacting these reforms, those choices were rational and they passed constitutional muster.
The release that the petitioners seek would prevent the Secretary was complying --
from complying with the federal law requirement to send ballots to military and overseas voters
by September 19 and would interfere with the ability to administer the general election.
Where the deadline for ballot receipt does not pose significant interference
with voters' ability to participate in the primary election
and where adopting the remedy proposed by the petitioners would significantly interfere
with opportunities for voter participation
in the general election, the petition should be denied.
At this time I'd be glad to take the court's questions.
>> Thank you [inaudible].
>> Thank you very much.
So when I -- when I hear your argument, you seem to be saying, well,
the Secretary of State understandably his concern is that nobody be disenfranchised
but certainly as few people as possible.
And we're dealing with legislation passed in 2020 cognizant of the pandemic.
And, sure, there's a concern.
Absolutely there's a concern that if somebody waits until August 26 to request a ballot that,
if they decide to return the ballot by mail, that may not get in on time.
But we have to take that scenario in the context of all potential voters and look and see whether
or not this statute was reasonable in requiring that the votes be in by September 1st.
Is that basically his position?
>> That is our position, Your Honor, that even the voter who waits until the very last moment
to submit a ballot, a non-in-person ballot for lack of a better term,
that person is not disenfranchised.
That person may be -- not have the entire menu of options available to them,
the menu of options that the legislature created to expand voter opportunities this year.
But they absolutely have opportunities
to make sure their vote will be counted in this year's election.
>> Right. So August 26 the legislature could have said August 16th, but that would have --
and that would have made it more certain that the vote
if mailed back would have gotten there on time.
But the legislature didn't pick August 15th, August 16th, August 10th.
They picked August 26th.
And perhaps that's not unreasonable because it gives the voter more time to decide.
But if you wait till October -- August 26, then your options of how to vote may not be the same
as if you had made your decision on August 12th.
Do you understand what I'm saying?
>> I think that's exactly right, Your Honor, in that it's clear from the overall provisions
of the 2020 law that the legislature was very much interested in taking multiple approaches
to expanding opportunities for voters to safely participate in this year's election,
and I think it would have been rational when setting the deadline for application request
at August 26th to try to push that -- to try to inch that as late as possible in order to allow
as many voters to take advantage of that.
>> But, of course, if the voter takes that option as late as August 26,
then they may have fewer options as to the menu of ways to vote with this 2020 statute.
>> I think that's right, but that voter has probably still got more options
than if the legislature had set the deadline early, say, August 15 and the voter had not
yet decided by that deadline but they wanted to request a mail-in ballot.
At that point, the voter who decides on August 26th that they don't want to vote
by in-person means will have missed the deadline.
So the legislature -- the provision and the date
that the legislature chose has still had the effect of maximizing voter opportunities
over a deadline that might have been set earlier.
>> Okay. Thank you.
[ Inaudible ]
>> Yes. Hi.
I guess I'm just trying to figure out.
I -- one of the concerns I have is that voters were not on notice necessarily
that there could be a situation where their vote might not count, even if they abide
by the guideline presented in the application; is that fair to say?
>> I don't think that's quite fair to say.
It is true that the application did not contain information about the vote receipt deadline,
but the ballot materials that go out to the voters very prominently features a warning
as to the date and time by which your ballot must be received in order to count
so that a voter, when making the decision about how to return their voted ballot,
is very much aware of what time it must be received in order to ensure that it counts
and can make the decision about how to return that ballot accordingly.
>> Yeah. I mean, I -- I mean, just anecdotally,
I know people who haven't yet received their ballots.
I myself after hearing all the concerns about Postal Service and whatnot,
I was going to request the mail-in ballot.
And then it sounded like, gee, that that may not be the best way to go.
I don't feel comfortable.
I don't feel like that's going to -- that's going to work, and you're confirming to me
that that, in fact, may very well be the case.
So I'm just trying to figure out what are we to do about the fact
that we've got all of this going on.
I understand that the -- you know, this legislation went through post-pandemic,
but we didn't necessarily know that there were going to be all of these problems
with the post office; isn't that fair?
>> So I guess I would offer a few things in response to that.
One is that, by way of numbers, although I don't doubt that there are plenty of anecdotes
about folks who experienced a delay in receiving their ballot, I can report that at least
as of 10 a.m. this morning upwards of 97 percent of requests
for mail-in ballots had been fulfilled, and it's changing by the minute such that we expect
by the end of the day we'll be at about as close to 100 percent as we can get,
understanding that we're still receiving requests.
So I think there's not significant cause for concern there.
The other thing --
>> Just to stop you there just for a second, just to put on the record.
>> Sure.
>> One person I know received the wrong ballot so, you know, had to --
there had to be time built in to get a new ballot.
Do you know what I mean?
So all sorts of things are going on.
But I do hear you and that, you know, the office is trying to get the ballots
out as quickly and effectively as possible.
I'm sorry.
>> It's no problem at all.
The other thing I'll point to with respect to the Postal Service issues is that,
while it's true that what's going on with the Postal Service now could not necessarily have
been anticipated earlier this summer when the 2020 law was passed,
it is also true that the Secretary has taken steps to ensure that those changes
in Postal Service operations will not affect Massachusetts voters.
So one of the changes to the Postal Service operations has been the way they treat election
mail that is not postmarked using first-class postage.
And so the -- those may not be entitled to --
may not be treated with the same speed with which first-class mail would
or election mail has been treated by the Postal Service in the past.
That is an issue that should not affect Massachusetts.
The Secretary has -- all the ballot applications went out by first-class mail,
and the ballots that voter receipt --
that voters receive are being sent via first-class mail.
The envelopes with which they can return them
to their local election officials are postage prepaid with the first-class mail rate.
So the Secretary has done what he can within his power to ensure --
to pay for that additional postage and to ensure that the election mail gets treated
in an expeditious way by the Postal Service.
>> Okay. Thank you.
>> Justin Cypher.
>> Yes. Thank you.
Is the only challenge created by the proposed extension the problem that would occur
if there is a recount, or are there other challenges presented to the Secretary?
>> The recount is a large part of the challenge.
There is also an opportunity for people to file objections with the State Ballot Law Commission,
objecting to a candidate's placement on the general election ballot,
and those have to be heard and resolved as well.
There are other things that have to take place with the resolution of provisional ballots.
If somebody casts a ballot and their registration status is uncertain
at the time they cast it, that needs to be resolved.
But the sort of -- the longer -- the longer time periods, the things that are more complicated
and more time-consuming to resolve are the recount
and the State Ballot Law Commission objections.
>> Thank you.
One more question.
Do you agree with the characterization by the petitioner in the reply brief
that the Secretary has met shorter deadlines in the past and that this is not a big deal
in terms of the number, that you've met -- you've met shorter deadlines in the past?
>> I don't agree.
And, actually, the chart that they the petitioner submitted
with their reply is quite helpful as an illustration of that.
So if Your Honors look at that chart, you'll notice that in all years 2010
and prior the number of days between the primary and the general election was the same.
It was 49 days, and that's because our statute requires that the primary be held
on the seventh Tuesday preceding the general.
So that's why it stays fixed at 49.
But something changes you'll notice in 2010, and the reason for that change is
that the MOVE Act imposed the 45-day federal law deadline for the Secretary
and local election officials to transmit ballots to military and overseas voters.
In 2010, because that requirement was new, Massachusetts as well
as some other states did receive a waiver of that deadline,
which is why the time period remained at [inaudible] days.
But you'll notice that for every election since there has been a longer time period
between the primary and the general election, and that is because special --
special legislation has been enacted in every biennial state election year since 2010
to move our primary date earlier so that we could comply with federal law.
So that's why those numbers go up,
and you'll see that there are also differences in presidential election years.
Turnout is higher.
There are more ballots to count, and any recount would be more [inaudible].
>> Thank you.
I have no further questions.
>> Justice Kafker.
>> Yes. So tell me about how the lock boxes, what does the statute say
about lock boxes and what factually do we know?
Does every town have a lock box?
Are they required to?
>> The law does not require every municipality to have a contact-free drop box,
although we know that many of them do.
As best I can ascertain, there are at least about 200 of them across the Commonwealth as is.
That is not the only way to drop off your ballot if you don't want to put it in the mail
and you don't want to vote in person.
The legislation also required that your --
you can turn your mail-in ballot in at any early voting site during early voting hours.
Those happen for seven days before the primary and for 20 days before the general.
You can also hand it to your local election officials.
And so while those options are not quite as contact-free as putting it
in a metal box outside a building might be, they are certainly --
come with less contact than one might encounter voting in person.
And given the traffic we've seen at early voting sites and the widespread availability of dates
and times for early voting, one is likely to encounter far less human contact at those sites
than they would at, say, the grocery store.
>> The other question I have relates to -- and this is going to be the first time in history,
right, that we're going to have this level of mail-in voting; is that correct?
>> That's right.
This is the first time that one has been able to vote by mail without an excuse in Massachusetts.
>> So and I take it based on -- I mean, I read it --
again, I'm reading The Washington Post today and The Globe today says that they're going
to be a whole different set of potentially of challenges to mail-in voting.
Does that also justify sort of strict compliance with this September 1st deadline,
meaning that there may be a more robust type of challenge to votes this time
that haven't proceeded in the past; is that fair to say?
>> I mean, certainly if that were to come to pass, that would place additional strain
on the already limited time that we have to do what needs to be done
between the primary and general, yes.
>> Meaning that, again, first time in history we've ever dealt with mail-in voting,
and the recount and challenge process may be more complicated than it's been
in the past; again, is that fair to say?
>> I think it's fair to say that it may be more complicated both
because this is the first time we're doing this because as we sort of described in our brief,
the procedure followed for the 2018 recount in the 3rd Congressional District, obviously,
it can't -- if there is a recount this year, it won't be able to happen in exactly the same way
because of the pandemic and the need for social distancing.
And it also may be that that those procedural options, that more people choose --
that we're more likely to see more recount requests or more objections
to the Ballot Law Commission because this is the first year we're doing it in this way.
It's difficult to predict.
>> And my final question is more sort of, you know, part of what we're trying
to do is educate people what the options are.
So you're a voter who's not received their -- you've requested -- you want --
you're a person who's interested in mail-in voting
to avoid, you know, interpersonal contact.
It's now August 24th.
What are -- what are your options to preserve your vote?
Just this person doesn't have their ballot yet.
What can they do right now and under the law
that the legislature has passed and make sure they get to vote.
>> If that person has not yet applied for a ballot, they can still do so;
and they can drop that application off with their local election officials.
If they have already applied for their ballot but have not received it,
they can inquire with their local election officials or with the Secretary
of State's office and check status.
It is also true that worst case scenario,
if somebody is not certain whether their mail-in vote will be counted, although they might prefer
for obvious and understandable reasons to avoid human contact, they can still go in and vote
in person at an early voting site at which there ought to be less traffic and fewer people
or worst -- absolute worst-case scenario, on Election Day.
So your vote will only be counted once.
If you're not sure, either you check the website
and you're not certain whether your vote has been received or the website indicates
that your vote has not been received and you want to make sure
that your vote counts this year, you can go vote in person at an early voting --
early voting site or on Election Day.
>> And if you're -- if you've sent in your ballot --
and I looked at this sophisticated tracking system they've developed,
the Secretary of State has developed -- and it indicates your ballot has not been received yet,
and that happens over the next couple of days, can you -- you can still go try to vote,
I take it, if you -- if you don't know if it's been received?
I'm just trying to figure out what how do you protect yourself if you don't show up on
that database or you don't trust that database.
>> I'm sorry.
You may -- you can absolutely still go vote in person at either an early voting site
or at your regular polling location on Election Day if that website does not yet indicate
that your ballot has been received.
>> Okay. Thank you.
That's all I have.
[ Inaudible ]
>> Yeah. I was hoping you could go over that chart with me again
because I'm not seeing exactly what you said here.
After 2010, you said there was a change so it wouldn't be 49 days.
But I think to me that if we have September 1, 2020, to November 3, 2020, at 63 days
and it was shorter than that in 2014 with 56 days, right; shorter than that in 2016.
It was 61 days.
And September -- 2018 I'm not sure because of the difference in the way it was done here
because they're putting in between them the recounts in the general election as opposed
to the days between the primary election and general election date.
But I'm assuming that's probably very similar to what it was in 2020, right?
>> Yeah. So the duration is I suppose marginally shorter in 2016 and 2014.
It's important to remember that 2014 was not a presidential election year.
>> 2016 was, though, wasn't it?
>> It was but there's a difference of only two days between --
>> Yes. It's two days [inaudible].
>> In 2018 there was only -- by the time the recount was finished --
I'm just checking my dates.
2018 was again not a presidential election.
Turnout was lower.
And I'll have to count the number of days that we had in 2018
because it's expressed a little differently on this chart.
The number that's given is the date following the recount.
>> Right. I understand that this is saying.
I think they probably are arithmetically probably similar.
September 4th and November 6th is probably not too much different
from September 1st and November 3rd.
I don't know how much -- I haven't done it.
Yeah. It's not that important.
[Inaudible] sure I was understanding that, in fact, after 2010 there was still some times
when it was, you know, less than what it is right now.
>> Yeah. But I'm actually calculating 2018 is the same, 63 days.
>> Yeah. But okay.
So you still had 2016, 2014.
2012 was a little bit shorter.
>> So I'm not sure I understand what your point was, that 2000 you were talking
about the contrast between 49 days, I suppose.
>> Yes. Exactly.
That essentially the comparison value of the date or the duration of time from '10
and previous is very low because the situation was far different in those years.
We did not have the 45-day federal law deadline by which we need
to transmit balance to military and overseas voters.
So that's why the dates from -- on this chart from 1996 to 2010 are showing a duration
of just 49 days, and then you see that they go up in the years since when we've had
to comply with that 45-day deadline.
>> Yeah. Let me ask you a question.
I mean, I suppose, though, we're not talking
about mailing this to the -- to the feds, are we.
We're talking about the electronic transmission?
>> So some do electronic transmission and some do by mail.
>> Oh. So we rely on the United States Post Office to meet the 45 days?
>> Yes. So it's actually at the voters' requests for the military and overseas voters.
So they can ask for it electronically or they can ask for it by mail.
And, yes. Obviously, there's -- we've got to rely on the Postal Service to get those --
those ballots where military and overseas voters ask for them by mail [inaudible].
>> [Inaudible] you know, I asked a question before
about the day of the legislation this year.
I mean it was clearly post-pandemic, it was certainly pre-knowledge
of the post office difficulties, right?
>> I believe so.
I think it was enacted on July 6th of this year.
>> Yeah. So it's not like that is really going
to answer the question whether the legislature really anticipated this because they even --
even they [inaudible] the general election, right?
>> They did give three extra days for the general election because what has
to happen following the general election is different.
The constraints on the Secretary and on the Commonwealth are different.
There are still some that exist after the general election, but they're different
than what has to happen after the primary in order to quickly pivot and be able
to safely administer a general election.
>> What about the [inaudible] Haynes business [phonetic spelling] that they keep bringing up?
That was quite late and it was quite contested, wasn't it?
>> I'm sorry.
>> Somebody had to do it, [inaudible] Haynes?
>> Yes. The 2018 recount.
>> Yep.
>> Yes. That was quite contentious and a labor-intensive recount, that we have reason
to believe that the number of votes that will be cast
in the 4th Congressional District this year will far outpace what was cast
in the 3rd Congressional District in 2018.
And when you add in not just more ballots to recount but also the additional constraints
of social distancing in the pandemic, as laborious as the recount was in 2018,
we would expect that any recount that would occur this year would be even more complex.
>> Yeah.
[ Inaudible ]
I suspect all of us do about people who have not yet received their ballots.
And that is a problem.
I mean, if you can't even get your ballot in now by mail, that's a problem, isn't it?
>> I agree that it's cause for concern, although as a number --
>> You couldn't be sure that it would be postmarked, could you?
I mean, I am still [inaudible] about what postmarking means and how it's achieved?
How can anyone ever be sure of the postmark?
>> I think Your Honor was exactly correct when you spoke with Mr. Robbins to say
that the only way to be sure of a postmark is to walk your piece of mail into a post office
and watch them apply the postmark stamp.
It is correct to say that, if you put it in your mailbox or in a blue mailbox on the street
or hand it to a postal worker, it's probably not going to get postmarked my guess is
until at least the following day.
>> Yeah. Okay.
I don't have anything else.
Thank you.
>> Well, I'm one of the 97 percent who did receive a ballot.
Someone just asked you does the potential for disenfranchisement given all the uncertainties
out there lead to strict scrutiny analysis?
How do you get to a rational basis with that in the air?
>> So I don't think it does, Your Honor, and that's in part because I disagree with the idea
that anyone is disenfranchised by the deadline.
So while it's true as we spoke about earlier that someone who waits until August 26
to request a ballot may have fewer options available to them among the menu of options
that has been provided by the legislature to get their ballot back
on time, they do still have options.
That voter has not been disenfranchised.
They may just be more limited in how they can return that ballot and ensure
that it is received in a timely manner by their local election official.
>> I should know the answer to this, but could you please educate me.
With respect to the decision that ballots should be received by mail by 9/1
to be counted, that's not in the statute?
That's something that the Secretary of State came up with, correct?
>> No, Your Honor.
That is in the 2020 statute.
>> That's in the statute that have to be received to be counted?
>> That's correct.
The 2020 statute contains both that deadline at 8 pm as well
as the three-day deadline for the general.
>> Oh, okay.
I should -- I should have known that.
Thank you.
And I interrupted you.
Please proceed with your answer.
>> With respect to standard of review, again,
I think part of the reason we have a fundamental disagreement with the petitioners over the level
of scrutiny is because we disagree that any voter is, per se, disenfranchised by operation
of the deadline but also because, as the Court well knows in the context of election cases,
there is a sliding scale by which the Court determines the appropriate level of scrutiny.
And the question that is asked to ascertain where the level of scrutiny ought to be
on that sliding scale is whether the provision of issue creates significant interference
with the voters' ability to exercise the franchise.
And as we've described in our brief, that's simply not the case here.
Goldstein was a very different case.
That was earlier on in the pandemic when the legislature --
in the ballot access context had not yet acted to adapt the ordinary statutory requirements
to account for the changed conditions of the pandemic.
That's quite different than what we have here.
Here, the legislature has dramatically expanded the menu of options available to voters
so that it -- I don't believe it can be fairly said that any particular aspect
of that menu creates significant interference with the voters' right
or ability to exercise their franchise.
We're now looking at, you know, sort of minor questions as to whether --
whether the August 26 deadline ought to have been a day earlier or a day later.
That's very different than the question that the Court had in front of it in Goldstein
where candidates at the time were still subject to pre-pandemic rules.
And so as a result, when you look at the significant interference question in the context
of all of the menu of options available to voters, it's clear that the Court ought
to be exercising rational basis for view here rather than strict screening.
>> And your argument is once we get to rational basis the issue then becomes how --
how the Secretary is able to comply with federal requirements
which leads to the longer time frame.
>> That's part of it but also the reasonableness of the legislature's judgment
that August 26 was an appropriate deadline and --
>> What's -- I know you may not know the answer to this, but was part of the rationale
for the deadline to be set at -- for the same day as the election at 8 pm
to incentivize people to mail in early?
>> I don't believe that's the case, Your Honor.
I believe that that deadline was motivated by exactly what we've been discussing here today,
which is the post-primary deadlines and everything that needs to occur in order
for Secretary Galvin to administer a fair and orderly general election.
>> Could we -- we can't expect that if someone was to mail on 9/1, it's postmarked on 9/1,
it's not going to get there the same day
if you're mailing something from, you know, Pittsfield, right?
>> Right. And that's why, you know, if a voter has requested --
>> I'm not going to pick on the Pittsfield Postal Service
but anywhere it's not necessarily going
to be received the same day if it's dropped in a mailbox.
>> I think that's right, and that is likely part
of the reason why the legislature created the opportunity to return your mail-in ballot
to an early voting site or to a polling location or your election official so that if,
for example, you received a ballot by mail, you haven't decided who to vote for
or you just get it on August 30th and you want to make sure it gets
to your local election official by the deadline, you are not limited to just a mail-in option --
>> Right. So if I wait to the last minute and I drop it into a mailbox,
I just don't know if it's going to get to my polling place by then.
>> If it's a mailbox, yes.
If it's a drop box, one of the municipal drop boxes, then you don't have to worry about it.
If it's a Postal Service mailbox, yeah.
>> Okay. All right.
That's all the questions I have.
Thank you very much.
Let me just remind the Justices if we could have [inaudible] or stop the call at 12:15.
But thank you, Council.
>> Thank you.